Disability Access Certificates (DAC)
The Building Control (Amendment) Regulations 2009 (the “Regulations”) came into force on 1 January 2010 and prohibit the opening, operation or occupation of buildings without a DAC granted by the relevant Building Control Authority.
Developments Requiring a DAC:
The Regulations apply to (a) new buildings and (b) existing buildings that have undergone significant revisions, modifications or change of use. This means that when an employer/developer wants to construct a new building (e.g. offices, commercial/retail facilities) they must ensure they have a DAC in place before beginning the works. Similarly, if the owner of an existing building wishes to carry out material alterations or a change of use they must also obtain a DAC before doing so.
Once a DAC is in place there is no requirement to renew or update it – it only needs to be obtained upon one of the events noted above. If a DAC is obtained and the design on which it is based subsequently changes before or during the course of the works then a revised DAC will have to be obtained by the employer/developer/owner as the case may be.
Exemptions:
The Regulations note that DACs do not apply to new houses although the Building Regulations were extended in 2000 to provide that new houses must be designed and built to provide access for the disabled.
Application Procedure:
The application is sent to the relevant Authority and should be accompanied by the necessary plans and drawings and other documentation as set out in the Regulations together with the appropriate fee.
The Building Control Authority will then decide whether to request further information from the applicant or refuse or grant (with or without conditions) the DAC to the applicant.
When considering an application the Building Control Authority will only consider the extent to which the design of the building or works in question complies with the criteria listed in Part M of the Second Schedule of the Building Regulations 1997.
The applicant may appeal any refusal or conditions imposed to an Bord Pleanala.
Inspection:
The Building Control Act 1990 grants a right of access to any person authorised by the Building Control Authority, an Bord Pleanala or the Minister to lands to carry out an inspection for the purposes of that Act which extends to compliance with the Regulations.
Other Developments:
The Building Regulations (Part M Amendment) Regulations 2010 also set out new procedures in respect of approach and access for new buildings and dwellings.
Conclusion:
The Regulations have effectively put DACs on the same footing as FSCs and they must now be obtained in the circumstances as outlined above. As a result building owners/tenants/purchasers etc will need to be aware that a DAC now forms part of the handover requirements in property transactions moving forward in the same way as Fire Safety Certificates.
Failure to obtain a DAC when one is required can lead to prosecution under the Building Control legislation. Penalties under this legislation include fines and/or imprisonment. It could also prove difficult to sell a premises where a DAC is required but the vendor cannot provide it to the purchaser.
Fire Safety Certificates (FSC)
The Building Control Regulations 1997 to 2009 (the “Regulations”) have been in force since 1 July 1998 and contain an obligation for certain buildings and developments to obtain a FSC in particular circumstances.
The Building Control (Amendment) Regulations 2009 which came into force on 1 January 2010 have amended the procedure for applying for a FSC by introducing a new “7-day Notice”. The aim behind the 7-day Notice is to speed up what can be a slow procedure as applicants previously had to wait for the Building Control Authority to grant a FSC before works could begin.
A 7-day Notice can now be submitted to the Building Control Authority accompanied by a valid application for a FSC and a statutory declaration by the applicant that they will comply with the Building Regulations and any modifications or conditions that may be imposed when the FSC is granted.
The Building Control (Amendment) Regulations 2009 also allow for the granting of a Regularisation Certificate which regularises the situation where a FSC should have been obtained but was not. The 2009 Regulations also provide for the granting of a Revised FSC in circumstances where a FSC was granted but the design of the building was subsequently materially altered or the construction of the building is materially different from the design.
Developments Requiring a FSC:
FSCs are required for the design and construction of all new buildings after the commencement of the Regulations.
They are also required when there is a material alteration of specified public buildings (e.g. shopping centres, hotels etc) or where additional floor area is being provided in existing buildings such as shops, offices or industrial buildings. Where such existing buildings are being divided up into smaller units a separate FSC will be required for each unit.
A FSC will also be required where a building undergoes a material change of use or where a building is extended by more than 25 square metres.
A FSC must be in place before work commences on the proposed development. If the constructed works deviate from the original designs submitted with the application for the FSC for a development it may be necessary to apply for a Revised FSC under the Building Control (Amendment) Regulations 2009.
There is no requirement to renew a FSC periodically.
Exemptions:
The Regulations list particular developments which do not require a FSC. These include, for example, buildings used as dwellings (other than flats), domestic garages and works in connection with Garda stations, courthouses and certain government buildings.
Application Procedure:
The application procedure for FSCs is broadly similar to that for DACs. An application for a FSC is made to the Building Control Authority for the relevant area in which the development is being carried out.
The Regulations contain the form in which the application must be made and this must be accompanied by the relevant drawings, a fire safety report and the appropriate fee. The application for a FSC is generally prepared by a Fire Safety Consultant, Architect or Engineer who will have the necessary expertise of the Regulations and application procedure.
When considering an application the Building Control Authority will only consider the extent to which the design of the building or works in question complies with the criteria listed in Part B of the Second Schedule of the Building Regulations 1997.
The Building Control Authority will then decide to grant (either with or without conditions attached) or refuse the FSC application.
The Building Control Authority may also request further information or revised/modified plans/specifications upon which they would be willing to grant the FSC.
An applicant for a FSC may appeal its refusal or any conditions imposed to An Bord Pleanala within the timeframe noted in the Regulations.
Inspection:
The Building Control Act 1990 grants a right of access to any person authorised by the Building Control Authority, an Bord Pleanála or the Minister to lands to carry out an inspection for the purposes of that Act which extends to compliance with the Regulations.
Other Developments:
The continuing legislative focus on heat and energy efficiency is reflected in the Building Regulations (Part L Amendment) Regulations 2011 which sets higher thermal performance/insulation standards for domestic buildings where works commence on or after 1 December 2011.
Conclusion:
The importance of obtaining a FSC in respect of a building/development cannot be understated. Failure to obtain a FSC will leave a building owner exposed to prosecution under the Building Control legislation. Penalties under this legislation include fines and/or imprisonment.
Further, if a vendor wishes to sell a building requiring a FSC under the Regulations they will encounter difficulty if they cannot provide the purchaser with the FSC.
Contributed by Jarleth Heneghan, Partner, Cassandra Byrne, Associate and Hugh Cummins, Solicitor.
