Here’s How to Avoid Another Longboat Quay

Someone’s going to have to pay as much as €4 million to make the Longboat Quay apartment complex fire-safe, although it’s not yet clear who.

Meanwhile, it looks like it’s going to take independent.ie/business/personal-finance/property-mortgages/redevelopment-begins-at-priory-hall-31563483.html">€27 million to make the disastrous Priory Hall apartment complex in Donaghmede safe, a redevelopment Dublin City Council (DCC) recently began.

And it’s not just Priory Hall and Longboat Quay.

Minister for Finance Michael Noonan said last month that NAMA has spent €100 million fixing defects in “40 individual developments, mainly apartment developments in the Dublin area”.

Why is it that when you pull the skin off so many of these shiny boom-time apartment buildings, they turn out to have rotten cores?

A lot of experts think it’s the fault of a lax regulatory system of “self-inspection” that was in place from 1990 and 2014. And that the system might not be fixed yet.

In March of 2014, an amendment to the law was made to ensure “reinforced self-inspection”, but some local architects argue the new system doesn’t lead to better buildings, just many more hours spent compiling complex paper trails and making sure there is someone to sue if things go wrong.

The Self-Inspection Era

In 1990, the Building Control Act replaced the old system of mandatory building inspections by local authorities, and introduced the system of “self-inspection”. That new system lasted until March 2014.

During that period, says Deirdre Ní Fhloinn, a PhD student at Trinity College Dublin’s School of Law, who specialises in legal remedies for defective housing, “the practice was that an architect or engineer would give an opinion saying, ‘In my view the development substantially complies with the building regulations.’”

To say that the building substantially matched the drawings submitted when the development was given planning permission, though, the professional was not required to have been involved in the development throughout the construction process. This meant she or he could easily miss defects inside the walls.

Also, the professional giving their opinion on compliance was an employee of the developer, which could make it awkward to say that the building was crap and construction needed to stop until certain problems were fixed.

“The problem in Ireland, which is almost unique is that there is no person who isn’t connected to the developer, looking at the project making sure it is being built right,” says Sandycove-based architect Maoilíosa Reynolds.

If a building did turn out to be rubbish under this system, the consumer was left hanging. His or her only recourse was to try to sue someone. Unfortunately, sometimes there is no one to sue.

That’s what happened with Longboat Quay.

The developer, Bernard McNamara, went bust in the crash. His old development company, Gendsong, is in receivership and therefore not suable. And the architect who gave the opinion of compliance?

He now lives in Ghana.

The New Rules

The new rules were introduced in March of last year “to ensure that we never had another Priory Hall or poorly built housing estates around the country again”, according to a Ministry of the Environment press release.

They require a developer to hire a certified architect, building surveyor or chartered engineer to inspect the development throughout the construction process and certify that the building is up to standard once completed.

The professional who inspects and certifies the building is called the “assigned certifier”, and she has to sign off on a building with her own name, not her firm’s, making her liable if the building turns out to have any defects.

Is this system any better? Not if you ask an architect.

Just “More Red Tape”

“The system’s failures that gave us Longboat Quay are still there in the new system, they haven’t been addressed,” says Reynolds, the Sandycove-based architect. “The system essentially is still the same except there’s an awful lot more red tape.”

The main problem with quality-assurance, as Reynolds sees it, is that there is still no external, independent inspector coming to the site with real regulatory teeth. The assigned certifier still can be an employee of the developer, and still doesn’t have much power.

“This assigned certifier role that has been created has no statutory powers. The builder doesn’t even have to let them on site, so they can’t close the site,” says Reynolds. “If they see something that is being done badly, the best they can do is resign.”

If an assigned certifier did resign, the developer could probably find another professional who would sign off on the project and hope no problems surfaced in the future.

Clare Daly, Independent TD for Dublin North, sees the issue much the same way as Reynolds.

“The new system simply identifies somebody who can be sued later on and will in no way stop deficiencies from happening,” Daly said in an email. “To make architects a fall guy for the deficiencies is ludicrous.”

But not everyone sees the new system as Reynolds and Daly do.

Making Someone Responsible

“It seems to me to be a robust system,” says Labour’s Andrew Montague, chair of Dublin City Council’s planning committee.

Montague thinks the new regulation will make a future Longboat Quay situation “a lot less likely because someone has to put their name on the form and say, yes they’ve inspected it.”

“It would be my feeling that the architects don’t like it because the buck stops with them and they’d rather it to stop with someone else,” says Montague of the concerns raised by architects.

Ireland’s Construction Industry Federation (CIF) agrees with the councillor.

“Our view is that BC(A)R SI.9 [the new regulation] is a substantial step forward over and above what was previously in situ,” says Anne Cleary, the communications director at CIF.

Cleary thinks the new regulation “should ensure that the likes of Priory Hall and Longboat Quay won’t happen again.”

The Price of Change

Assembling the complex paper trail required by the new regulation takes a lot of time. And an architect’s time is expensive.

Former Minister for the Environment Phil Hogan suggested that the cost of complying with the new regulation, SI.9, would amount to somewhere between €1,000 and €3,000 per house. But others put the number at more than ten times that.

Properly inspecting a house takes about 109 hours, said Robin Mandal, president of the Royal Institute of the Architects of Ireland, last month on RTE Radio’s This Week.

According to a post on BRegsForum, a blog dedicated to the issue of Building Control Reglation, complying with SI.9 can cost closer to €22,000 or even €40,000 for a one-off house.

Whoever you choose to believe, the price of getting your building inspected across the border in Northern Ireland is only a fraction the price: £175, which works out to about €247 at today’s exchange rate.

Oops

When professionals started charging for the inspections required by SI.9, the price of building your own house, or even of a modest extension to an existing house, skyrocketed.

This prompted a rather swift rethink of the regulation.

In April of this year, Minister for the Environment, Community and Local Government Alan Kelly launched a review of SI.9. He publicly cast rogue architects as the villains causing the problems.

“A number of cases have been brought to my attention and my colleague Minister [Paudie] Coffey whereby consumers have been quoted outlandish charges for professional services in relation to residential construction projects,” said Kelly, in a press release.

Coffey is Minister of State at the Department of the Environment, with special responsibility for Housing, among other things. It seems he was charged with looking at the details of the issue.

By summer, the government had decided to to amend the regulation. What he came up with wasn’t a cheaper version, but exemptions.

The amendment exempts people building one-off homes, or “self-builders”, from the statutory certification process that requires a certified architect, engineer or surveyor to inspect the building.

They get to opt out if they can “demonstrate by alternative means that they have met their general obligation to build in accordance with the minimum requirements of the building regulations,” the Department of Environment said in July.

At the time, Minister Coffey said homeowners, “will no longer be held to ransom by excessive quotes for design and completion certificates.”

If the government is afraid of rogue architects squeezing money out of noble self-builders and architects are afraid of getting sued maybe it would suit everyone if the government just took care over building inspection.

What About Independent Inspectors?

The best way to make our building-inspection system work properly is clear, according to Clare Daly.

“Independent oversight and inspection of building works takes place in Britain, in Northern Ireland, in Germany and France, why not in Ireland?” she asks. “This is the only way in which to stop what happened before, happening again.”

So what’s standing in the way? Is it the property industry trying to keep ahold of the inspection system, so they can give themselves an easy ride? If you think the property industry likes regulating themselves, you might be surprised.

“The difficulty with the building-control amendment as it is at the moment is that it doesn’t resolve the problem,” says Peter Stafford, director of Property Industry Ireland.

“It isn’t preventing the bad thing from happening, it’s simply adding a lot of cost and a lot of delay and also big responsibility on the shoulders of the architect who isn’t necessarily the best person to do the work,” says Stafford.

“The easiest thing,” he says, “is to have a completely independent inspection regime where liability very clearly rests with that independent inspector.”

Paying for Independent Inspectors

If the Dublin City Council was responsible for all building inspections, how much would it cost taxpayers?

At the moment, there are about 70 building-control officers in Ireland. Although they haven’t been required by law to inspect construction since 1990, they still aim to visit 12-15 percent of sites a year.

Architect Maoilíosa Reynolds thinks Ireland would need about 170 more building inspectors to visit all Irish building sites. Based on the average salary of the existing  building inspectors in Ireland Reynolds estimates that the cost of hiring these additional inspectors, would be just under €15 million a year.

At first, €15 million sounds like a lot, but keep in mind that the cost of building inspection will be cheaper. So if you’re building a house, you’ll pay less, and if you’re buying a house, you may also pay less since developers usually pass extra costs down to the consumer .

And the next Priory Hall would likely be shut down during the construction phase until the developer fixed the problem. Reynolds points out that Dublin City Council is spending about €27 million to refurbish Priory Hall.

“The question isn’t, can we afford to employ more local authority building control inspectors to operate a 100 percent independent inspection regime,’” says Reynolds. “Rather, it’s can we afford not to?”

We are not the first to suggest a system of independent inspection would be better.

When Phil Hogan was still Minister for the Environment, and Clare Daly tried to pin him down on why we don’t have a system of independent inspections by government inspectors, he didn’t have much of an answer. In a long-winded way, he just kind of said, we don’t have them because we don’t have them.

“It is not the function of the local building control authority to quality assure construction projects,” he said. “Owners, builders and designers must at all times take responsibility for their statutory obligations in line with the Building Control Act 1990 and take whatever steps are necessary in order to achieve compliance in respect of the building or works concerned.”

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Author:

Willy Simon: Willy Simon is Dublin Inquirer's planning and transport reporter.

Reader responses

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Eoin Leonard
at 11 November 2015 at 10:54

Good article overall, although I couldn’t agree with everything. We are a large Assigned Certification practice in Ireland and we do an excellent job. Some may believe that we have a vested interest in SI9, but in reality we would benefit far more from a modified, licensed system. Our processes are based on 3 years of international R&D into effective building control and I am confident to say that we are recognised as an authority on the subject.

I do have one significant issue with this article though. If the RIAI say that it takes 109 hours to properly inspect a house, this is surely a statement based on professional judgement. They have considered how long it takes to ensure that a building is compliant with the regulations and they have decided that it’s a substantial time commitment. Compliant buildings are in everyone’s interest. Architects have been very vocal on preventing “another Priory Hall” and history tells us that the only thing that can prevent this is appropriate due diligence, combined with penalties for failure.

I therefore struggle when the same group who estimate that it would take them 109 hours to do a job, in the same breath advocate a system in Nortern Ireland which charges as little as £210 for the same service. If we can assume that building control officers in this region do not need to be registered architects, surveyors or chartered engineers, we can assume two things; they are probably not paid as much and may not hold the mandatory qualifications which we have under S.I. 9. Taking that into account and assuming that public servants are paid travel costs, we can assume that this service allows for a total of 2-3 hours of inspection per property.

This assumes that public building control in Northern Ireland can inspect a house in less than 3% of the time it would take an Irish professional to do it “properly”. This rationale doesn’t bear close scrutiny. If someone tells me that this is a better system than the current system, I would have to agree with Mr. Montague, who surmised that once else someone is signing, these individuals don’t care whether is actually prevents defects or not.

The defence of this will inevitably be “they don’t have Priory Hall in Northern Ireland”. This is known as “availability bias” and it’s a common error in reasoning. It assumes that because it’s not been on RTE news, it’s not a problem.

Ultimately, the real answer is something in the middle. Local Authority inspections will establish a minimum viable approach and effectively allow professionals to abdicate responsibility for sign off. The recent Riverwalk Court case is a prime example of why this won’t work. Once the local authority (finally) engaged with the residents and agreed to inspect, they outsourced the inspections to a private firm. They are under resourced and they don’t have the teams with skill sets to deliver this culture change.

That said, S.I. 9 has some major weaknesses and change is necessary. The conversation needs to change. Less histrionics and howling at the moon, let’s figure out how to bridge the gaps in the current legislation and as an industry, let’s take responsibility for what we produce.

Paul Lee
at 11 November 2015 at 18:16

There is no question that inspection needs to be independent. Otherwise we can imagine that foxes are best at guarding hen houses. It’s not necessarily that professionals are up to no good but when you’re getting paid by a developer it’s hard to bite the hand that feeds you.

Why aren’t insurance companies responsible for inspections? We need someone in whose interest it is to find fault (obviously with reasonable cause). A statutory requirement just like car insurance.

Whatever the solution it’s clear that the RIAI are not competent, the Dept. of Environment aren’t competent. The CIF are the worst organisation to adjudicate or even comment on this. Engineers Ireland is nowhere to be seen.

Let a few independent politicians form a committee and invite proposals for a new process that isn’t completely barmy.

steve white
at 11 November 2015 at 18:45

can you not use headlines starting with Here’s How, its very condescending

Richie
at 13 November 2015 at 01:03

This cartoon is a good illustration of the unworkability of the new regs from an architect’s point of view: [http://www.broadsheet.ie/2012/05/…

It’s a case of brutal practicality from the government (and of shirking the responsibility of having to set up an independent inspection system), they know that the architect is likely to still be around and still covered by professional indemnity insurance when the mistakes in the building manifest themselves a few years down the line, whereas the builder/developer may well have wound up whatever shell company they were using on the project and disappeared off the scene. There’s no incentive for builders to improve their quality standards under the new regs, as the assigned certifier / architect is carrying the can if things are done sloppily and flaws are buried within walls or foundations, I’m not surprised the CIF are delighted with it.

Michael O'Neill
at 25 August 2016 at 11:35

Reply to – HERE’S HOW TO AVOID ANOTHER LONGBOAT QUAY

[http://www.dublininquirer.com/201…

A few points on the article which I found thought-provoking.

Wherever you see poor or non-existent regulation, that is where criminals rule.
Think of the banks and the construction sectors and the departments of war the world over.
All of the people profiting from these sectors regularly and repeatedly make a mess of things for others to clean up.

Ironically, given AK47’s broadside against Architects, that profession was intended to control builders to the benefit of the client.
However when the builder is the client that particular good intention can become a fantasy, depending on the personal and professional integrity of the architect in question.

“What you need is a good builder”

This advice was given to me by a former employer in the 90’s and I confess I didn’t understand the full implications at the time.
We were fortunate in that several of our clients were builder developers, comfortable with the technology to hand and willing to take the time to do it right.
I was personally fortunate in that I was not beholden to any of them and I had a brief to certify to a standard, not per the clients wishes, so the system worked as far as it went.

“The Knub of the Problem”

However where the system failed in the later Celtic Tiger Years was that nobody was doing what they were supposed to do.
New drywall systems of building were introduced, partly to satisfy the high priests of Sustainable Development and Energy Conservation, partly to remove wet trades delays from the Contractors point of view.
Quality control does not appear to have been maintained in step with this to ensure that drywall systems were correctly sealed or firestopped or even completed to ensure compartmentation occurred.
This resulted in ‘work covered up on the date of inspection’ which has left us with potentially fatally flawed buildings in terms of safety of occupants from fire.

“Inspections by someone, anyone…”

I myself have touted independent inspections, but once you get into complex, multi-story developments, even they can only do so much in a complex dry-wall system with pre-cast or prefabricated construction.
Rigorous inspections by Quality Control personnel following Requests for Inspection, Photographic records of each inspection and correctly issued Approvals or Non-Conformance Reports are the only way to do this.
This brings in the concept of a multi-disciplinary Consultant being appointed to monitor the Works but it leaves more than a one day inspection and only a straw man Certifier to sue.

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