¾«Æ·¹ú²ú×ÔÏßÎçÒ¹¸£Àû

Commencement notices and seven day notices, fire safety certificates and revised fire safety certificates, regularisation certificates and disability access certificates under the Building Control Acts and regulations thereunder: an outline and guidance for conveyancers.

Summary for conveyancers
1) Solicitors will continue to seek to have compliance verified in the same manner as heretofore in relation to building control or planning by getting a certificate of compliance to the effect that a building a client is buying or leasing complies with the building regulations.
2) The Conveyancing Committee is of the view that solicitors should not be unduly concerned in relation to whether a commencement notice or a seven-day notice had been given to the building control authority. If none is available, refer to the practice note below.
3) Fire safety certificates (FSCs) and disability access certificates (DACs) are clearly very important and must be obtained whether acting for a purchaser, tenant or other occupier. SI no 351 of 2009 imposes a prohibition on opening, operating or occupying buildings unless an FSC (and also a DAC) has been granted by the building control authority in respect of the building. A breach of this prohibition will be an offence and render a person in breach liable to prosecution under the Building Control Act 1990 as amended.

Detailed outline
The Building Control Acts and the regulations thereunder provide for certain standards to be met in relation to new buildings, buildings that are materially altered by extension or change of use, and also provide through the building control regulations for various procedures in relation to the control of such works.

The regulations have evolved considerably since 1992 and the ones currently in force are listed in the appendix hereto.

Exemptions from the building regulations
The transitional arrangements under the first regulations exempted buildings commenced before 1 June 1992 and buildings commenced after 1 June 1992 for which an application for building bye-law approval was lodged and/or granted before 1 June 1992.

There are certain exemptions, such as buildings constructed by a building control authority (BCA) in its functional area and buildings constructed by the state, such as garda stations, courthouses, etc. 

Exemptions from having to lodge a commencement notice
i) Carrying out work that is exempted development under the Planning Acts, except where a FSC is required,
ii) Constructions of certain single-storey buildings for a domestic house, such as a detached garage, tool-shed, conservatory, glass house, hen house etc. There are limits on the size of these.

Exemptions from having to apply for and obtain a FSC
a) Building works (which have obtained or applied for building bye-law approval prior to 1 June 1992) commenced before 1 August 1992,
b) All of the works exempted as listed in paragraphs (i) and (ii) above,
c) Single dwellings (not flats),
d) Certain buildings used exclusively for agricultural purposes,
e) Works carried out in compliance with a notice under section 20 of the Fire Services Act 1981,
f) Minor works. This is defined as works consisting of the installation, alteration or removal of a fixture or fitting or works of a decorative nature.

Technical guidance documents
The building regulations provide for the publication of technical guidance documents that set out technical building methods for use in the construction of buildings.

The guidance documents refer to several hundred codes of practice, standards or other technical references, which set out the required technical standards.

A building constructed or altered in compliance with the technical guidance documents prima facie complies with the building regulations.

There is no legal obligation to comply with the standards set out in the technical guidance documents.

Certificates of compliance
There is power in the 1990 act to make regulations providing for certificates of compliance, but this matter has been left to the construction and the property sector to sort out for themselves.

Multi-storey buildings
The provisions of the Local Government (Multi-Storey Buildings) Act 1988 ceased to have effect on 1 June 1992 except for cases coming within the transitional provisions of section 22(2) of the Building Control Act 1990. Multi-storey buildings that have applied for and/or received building bye-law approval started after 1 June 1992 will require the usual certificate and must comply with the 1988 act. In the event that only planning permission has been granted and that no application has been made or granted for building bye-law approval prior to 1 June 1992, the provisions of the Multi-Storey Buildings Act will not apply and the building must be erected in accordance with the building regulations. If work is commenced on a multi-storey building post 1 June 1992 and before 1 August 1992, no FSC is required under the building regulations.

Notices
The building control regulations provide for certain notices to be given to the BCA and for an FSC to be obtained before any work was commenced on a building that required an FSC.

Since the original regulations came into force in 1992, a person has been obliged to give a notice called a commencement notice to the BCA before the commencement of the construction of any building. The Building Control (Amendment) Regulations 2009 (SI no 351 of 2009), the entire of which is in force since 1st January 2010, provide as an alternative for an extra type of notice called a ‘seven-day notice’ to be served where an FSC is required but has not yet been obtained.

While BCAs keep a register of commencement notices for their own use, neither the acts nor any of the regulations give the public a right of access to it and, after a lapse of time, there may be difficulty, and indeed it may often prove impossible, to establish whether a commencement notice was or was not served in relation to any particular development. It is clearly very important for the maintenance of good standards of building that BCAs monitor building standards. The service of a commencement notice or a seven-day notice in every case will be an important ingredient in this process. However, the maintenance of such standards, and taking a tough line with persons who fail to serve a commencement notice or a seven-day notice, or breach the act or regulations, is a matter for the BCAs.

Background to the need for seven-day notices
A problem for developers in relation to developments that required an FSC has been that the form of commencement notice required the person submitting it to put in the FSC number. Developers frequently deferred authorising the preparation of an application for an FSC until planning permission had been obtained and a decision is made to proceed with the construction. Developers are then faced with a delay while the application for the FSC is prepared, which could take a few months for a large development. A further few months’ delay would then ensue while the BCA processed the application. Developers tended to want to start work on site works, basements, car parks etc without waiting for an FSC. The result was that developers got their architects or engineers to submit commencement notices without the FSC number (which of course did not yet exist) and usually these were returned rejected by the BCA. Some developers tried to get around this by issuing a commencement notice in relation to site works only, and some local authorities allowed this device, but others refused to countenance it and returned the commencement notices duly rejected.

As mentioned above, SI no 351 of 2009 introduced a new form of notice, called a seven-day notice. This could be given to the BCA instead of a commencement notice. A seven-day notice has to be accompanied by a valid application for an FSC and a statutory declaration from the applicant saying that he will comply fully with the building regulations and, within such a period as may be specified by the BCA, will carry out any modifications to the works that may be required under the FSC or required under any conditions attached to the FSC when granted. This should largely resolve the practical difficulty that is described above.

While, in practice, an FSC could be obtained retrospectively, these regulations expressly provide for a revised FSC (if changes are made in the course of the building that necessitate this) and what is called a regularisation certificate, which does what its name implies – that is, it regularises a situation where an FSC should have been obtained but was not. Substantially higher fees are charged for a regularisation certificate, and the fees for a seven-day notice are also substantially higher than for a commencement notice.

Fire safety certificates
An FSC is required before work starts on all building work to which part (B) of the regulations apply since the relevant part of the Building Control Act 1990 came into force on 1 August 1992.

In effect, this applies to virtually all buildings other than single dwellings. Applications for FSCs are made to the BCA. An application form, accompanied by detailed drawings, specifications, and calculations in respect of certain fire-related matters is required to be submitted. An application that does not contain the full information will be treated as invalid.

The BCA has two months in which to issue an FSC, unless an extension of time is agreed in writing between the applicant and the BCA.

The BCA may issue a refusal or issue a certificate (with or without conditions). The decision of the BCA may be appealed to An Bord Pleanála, whether it is against refusal or condition(s) imposed by it. The information to be submitted with the FSC is set out in the regulations. The information ranges from location maps of the site, complete plans, and plans of sections of the building, details of construction and services, specification of construction and material, along with certain calculations relating to the fire safety of the building.

There is no obligation on the BCA to follow up their FSC with any inspection of the works either before or during construction.

Register of fire safety certificates
The BCA is required to maintain a register in respect of applications and decisions made in respect of FSCs. The register is to contain the applicant, description of the work, the decision and the outcome of any appeal.

As mentioned before, SI no 351 of 2009 introduced major changes in relation to FSCs. It also introduced a completely new system to toughen the provisions dealing with access for people with disability.

The most significant is a new provision that imposes a prohibition on opening, operating or occupying buildings unless an FSC and also a disability access certificate (DAC) have been granted by the BCA in respect of the building. A breach of this prohibition will be an offence and render a person in breach liable to prosecution under the Building Control Act 1990 as amended.

The need for a DAC applies to any new building and to an existing building where significant revisions or changes are made to it.

The procedure for making an application for a DAC is set out in the regulations and very sensibly includes provisions for a revised DAC in the event that the design changes.

The procedure for applying for a DAC and the form of the certificate itself is broadly similar to that in relation to the FSC procedure.

Issues for conveyancers
The question arises as to whether the failure to serve a commencement notice or a seven-day notice should make a particular property unsaleable. The effect of not serving the commencement notice or seven-day notice in any case is that the person or persons carrying out the development commits an offence – but should this impact on a subsequent owner?

As already indicated, it is clearly very important for the maintenance of good standards of building that BCAs monitor building standards. The purpose of these notices is to make the BCA aware that a development is commencing so that they can monitor a development in such a manner as they see fit. There are two points that arise in relation to a development if no notice is served:
a) The first is whether there is any downside for a subsequent owner from a conveyancing point of view. Carrying out a development without serving a commencement notice or a seven-day notice is an offence and leaves the parties involved liable to prosecution. It will not impact otherwise on a subsequent owner. Solicitors should ask if a commencement notice or seven-day notice was served and for a copy thereof. We do not feel that solicitors should insist on a copy being furnished if it is not readily available. The Conveyancing Committee has already recommended that solicitors for subsequent owners should not concern themselves unduly about whether a commencement or seven-day notice was served or not or whether a copy of the commencement or seven-day notice is available or not.
b) The second point that arises from the non-service of a commencement or seven-day notice is that it may have been a deliberate omission. In most cases, it will turn out to be a mere oversight, and in some of those cases the BCA will be well aware of the commencement and may have carried out inspections. There may be a case from time to time where a contractor or developer wants to carry out work and due to something about the manner in which it is proposed to carry it out, does not wish to have the BCA know about it and be in a position to see what is done and, accordingly, does not serve a commencement or seven-day notice. This scenario is unlikely to arise if there is an architect or structural engineer involved in the development and, if it arises at all, is more likely to happen where a builder is operating without the assistance of professionals.

What, if anything, can a solicitor do? In any case where you establish that a commencement or seven-day notice has not been served (as opposed to a copy not being available), the circumstances should be investigated. If it seems to have been a genuine oversight and this is confirmed by a reputable professional or if the BCA was aware of the development and carried out inspections, no further action should arise. If there is any reason for disquiet as to whether the omission to serve a commencement or seven-day notice was deliberate or not, you should recommend to your client to seek the advice of an architect or structural engineer to consider whether any further surveys are necessary and possibly, in an extreme case, to review the decision to proceed with the purchase at all.

FSCs when buying or leasing second-hand property
In guidelines like this, it would be difficult to review all the possible situations that could arise in relation to buying or leasing a second-hand property. A stand-alone building may have required and got one FSC, and a mixed development may have required an FSC for the entire structure and then a multitude of different ones for offices, shops, supermarkets and apartments. In buying or taking a lease of a shop or office in a mixed development, the FSC that matters (other than that for the original overall development) is the one for the fit-out of the shop, assuming that the development as a whole is not changing materially in such a way as to require an overall new FSC for the entire development (which would be quite unusual). If the purchaser/tenant intends to refit the shop, the likelihood is that a new FSC will be needed for this and the old FSC for the fit-out is irrelevant. If the purchaser/tenant does not intend to refit, it is obviously important to check and see that the FSC obtained does cover the work done in the property. This is a matter for an architect or engineer and should be carried out before a contract to purchase or agreement for lease is signed.

Contractual considerations
General condition 36(b) of the Law Society Conditions of Sale includes a warranty by the vendor that any development on the property that is the subject of the contract has been carried out in substantial compliance with the Building Control Act 1990. General condition 36(d) provides that copies of, inter alia, all FSCs should be furnished. A solicitor acting for a purchaser should ensure that, where appropriate, a special condition is included in a contract to provide that 36(d) shall be deemed to include a DAC. In any event, the architect or other party issuing one of the agreed forms of certificate of opinion on compliance with building control, required to be furnished under 36(e)(ii), will need to be satisfied that the DAC has issued where required, and that any conditions thereof have been complied with. In the same way that the agreed forms of certificate of opinion on compliance with building control do not make specific reference to FSCs, they need not make specific reference to DACs. A solicitor acting for a tenant should ensure that the agreement for lease covers the production of a DAC in the same way as an FSC and the furnishing of an appropriate certificate of opinion on compliance.

Issues relating to all relevant matters need to be addressed by a vendor’s solicitor before issuing a draft contract for sale or agreement for lease, to ensure that whatever documentation the vendor is obliged to provide under general condition 36 will be available, and, in the case of an agreement for lease, that what is to be furnished is clarified, and, in both cases, that any problem area is covered by a carefully worded special condition.

The enquiries to be made by a solicitor for a purchaser or a tenant will be a mirror image of those of a vendor’s solicitor. The important thing is that the contract for sale or agreement for lease deals fully with any problem areas.

Appendix
Building Control Acts that are currently in force:

• Building Control Act 1990
• Building Control Act 2007

Building regulations that are currently in force:

• Building Control Regulations 1997 (SI no 496 of 1997)
• Building Regulations 1997 (SI no 497 of 1997)
• Building Control (Amendment) Regulations 2000 (SI no 10 of 2000)
• Building Regulations (Amendment) Regulations 2000 (SI no 179 of 2000) (part M)
• Building Regulations (Amendment) (No 2) Regulations 2000 (SI no 249 of 2000) (part D)
• Building Regulations (Amendment) (No 3) Regulations 2000 (SI no 441 of 2000) (class 9 exemption extension)
• Building Regulations (Amendment) (No 2) Regulations 2002 (SI no 581 of 2002) (part F)
• Building Control (Amendment) Regulations 2004 (SI no 85 of 2004)
• Building Regulations (Amendment) Regulations 2006 (SI no 115 of 2006)
• Building Regulations (Part L Amendment) Regulations 2008 (SI no 259 of 2008)
• Building Regulations (Part G Amendment) Regulations 2008 (SI no 335 of 2008)
• Building Control (Amendment) Regulations 2009 (SI no 351 of 2009)