BCAR 21-day deadline: Fact or fiction?

In the recent case of Dromaprop Ltd v Leitrim County Council [2024] IEHC 234, the High Court confirmed several important principles relating to the role of a county council in the building regulations regime in Ireland.

Certificate of Compliance on Completion

On completion of a building to which the Building Control Regulations 1997 to 2024 (“the Regulations”) apply, a Certification of Compliance on Completion (“a Certificate”), signed by the Builder and the Assigned Certifier must be submitted to a Building Control Authority (“BCA”). The Regulations provide that on receipt of a Certificate, a BCA has 21 days to either:

i. invalidate the Certificate;

ii. request further information, or

iii. validate the Certificate and place it on the register thereby confirming that the Certificate was properly completed and signed by the required persons, and that there are no unresolved matters in relation to information requests, enforcement notices or conditions attaching to Fire Safety Certificates or Disability Access Certificates.

Where the BCA does not validate or reject a Certificate or seek further information within these 21 days, the Certificate will be placed on the register automatically. Once a Certificate is placed on the register, a building may be opened, occupied or used.

Certification of Part of a Building

The Regulations allow that for buildings that are completed for occupation on a phased basis, such as apartment complexes, Certificates for each phase may be submitted separately at the completion of each stage. These Certificates should clearly identify the parts of the building or the particular works to which they relate. Where these Certificates are in order, the BCA should accept each and place it on the register thereby allowing that part of the building to be opened, occupied or used.

In Dromaprop, the decision of Leitrim County Council not to register a Certificate was quashed. The applicant in the case carried out works on the Abbey Manor Hotel in Dromahair, County Leitrim for the purpose of converting it for use as accommodation. The applicant submitted a Certificate to Leitrim County Council covering the above-ground floors as the two basement floors were to be closed off and not used pending development.

The council made a limited request for technical information, following the receipt of which they, outside the statutory period for a rejection, invalidated the Certificate stating that it was impossible to assess the compliance of the completed part of the works without the other phases being completed.

In quashing the council’s decision to invalidate the Certificate, the Court confirmed the following principles regarding the Regulations:

• A Council must validate and register a Certificate within the statutory timeline of 21 days unless, during that period, it decides the Certificate is invalid or seeks specified further information. Furthermore, where the council requests further information, any ultimate rejection of the Certificate must be based on matters dependent on that further information.

• A council’s failure to reject a Certificate or request further information within the 21 days gives rise to an obligation to validate and register the Certificate but does not affect a council’s subsequent enforcement powers for breach of the Regulations.

• In criticising the validity of the reason offered for not registering the Certificate, the Court also noted that there is a clear statutory intention to permit the partial Certification of buildings or projects.

It was held by the Court that the generic reasons offered by the council were inconsistent with the express statutory procedure for partial Certification. If a council raises a challenge about compliance by reference to interaction with an uncertified part of a development, they must identify something specific about the development that creates a breach of the Regulations.

 

 

Building Standards Regulatory Authority

In 2024, the Building Standards Regulator Steering Group (“the Group”) was established by the Department of Housing, Local Government and Heritage pursuant to the Housing for All commitment to establish an independent Building Standards Regulator. The Group issued its report in July 2024 recommending the establishment of the Buildings Standards Regulatory Authority (BSRA). Recognising that the enactment of the legislation necessary for the “BSRA“ will take some time the Group recommended a two-stage approach.

Building on existing systems and resources a corporate body known as the Building Standards Agency should be established to expedite the development of appropriate governance and management structures and to increase the inspection capacity of local authorities. The Group envisaged that the Building Standards Agency would ultimately transition to the BSRA when the relevant legislation was enacted.

Under current legislation, local authorities are BCAs for the purposes of monitoring and enforcing compliance with building regulations. The Group recommend that the BSRA would act as a national BCA by the establishment of service contracts with individual local authorities. It further recommends that:

i. in instances where a local authority is not adequately resourced to provide building control services, the BSRA should be capable of stepping in and operating as a BCA; and

ii. services provided by local authorities be assessed by reference to measurable performance indicators to ensure consistency in the delivery of building control services and compliance with the relevant legislation.

It remains to be seen how the recommendations of the Group and the progression of the Building Standards Regulatory Authority Bill will be treated by the Government formed earlier this year but, for now, Dromaprop provides useful reassurance to developers and contractors alike that the 21-day period in the Regulations is a hard deadline.

Rhona Henry, Partner and Head of Construction and Engineering, Matheson
T: 01 232 2110
E: rhona.henry@matheson.com

Alison Bearpark, Partner, Construction and Engineering, Matheson
T: 01 232 2218
E: alison.bearpark@matheson.com