First Previous (PART 1 Preliminary and General ) Next (PART 3 Registration of Architects )

21 2007

Building Control Act 2007

PART 2

Amendment of Building Control Act 1990

Amendment of section 1 (interpretation) of Act of 1990.

3 .— Section 1(3) of the Act of 1990 is amended by substituting “, paragraph or subparagraph” for “or paragraph” in both places where it occurs.

Amendment of section 3 (building regulations) of Act of 1990.

4 .— Section 3 of the Act of 1990 is amended in subsection (2)—

(a) in paragraph (e), by substituting “practice;” for “practice; and”, and

(b) by inserting the following paragraph after paragraph (e):

“(ea) making provision for building practices that would assist in preventing or detecting crime; and”.

Amendment of section 6 (building control regulations) of Act of 1990.

5 .— Section 6 of the Act of 1990 is amended—

(a) in subsection (2)(a)(ii), by deleting “and”, after “provisions of building regulations as may be prescribed,”,

(b) in subsection (2)(a)(iii), by substituting “the requirements of building regulations,” for “the requirements of building regulations;”,

(c) in subsection (2)(a), by inserting the following after subparagraph (iii):

“(iv) the submission (before grant of the relevant fire safety certificate) of a notice in writing to a building control authority (in this Act referred to as a ‘7 day notice’) by a person who intends to commence work on the construction of a building or an extension of or a material alteration to a building, giving not less than 7 days notice of that person’s intention to carry out those works, and requiring that such notice shall be accompanied by a valid application for a fire safety certificate,

(v) the submission to a building control authority by a person who submits a 7 day notice of a statutory declaration (in this Act referred to as a ‘7 day notice statutory declaration’) made by that person stating that the application for the relevant fire safety certificate has been completed in all respects and complies with the relevant provisions of the building control regulations, that any works that have been commenced before the grant of such certificate will comply with the building regulations and that the person will, within such period as may be specified by the building control authority, carry out any modification of such works that is required by or under the fire safety certificate, including any condition attached to it, when it is granted by the building control authority concerned,

(vi) where an application for a fire safety certificate in respect of the construction of a building or an extension of or a material alteration to a building has been submitted before planning permission has been granted in respect of such construction, extension or alteration, the submission, if required by the subsequent grant of such planning permission, of a further application to a building control authority for a fire safety certificate (in this Act referred to as a ‘revised fire safety certificate’) for the purpose of ensuring that the revised design arising from the grant of planning permission (including any condition attached to it) complies with the provisions of building regulations relating to fire safety,

(vii) where work has been commenced or completed in respect of the construction of a building or an extension of or a material alteration to a building, and no application has been made for a fire safety certificate that is required under building control regulations for such construction, extension of or material alteration to a building, the submission to a building control authority of an application for a certificate (a ‘regularisation certificate’) which shall be accompanied by drawings of the relevant works (as they have been constructed) and a statutory declaration from the applicant stating that such works comply with the provisions of the building regulations relating to fire safety, and enabling the authority to specify in a regularisation certificate that the regularisation certificate shall not have effect unless, within 4 months after its being granted, any conditions attached to it by the authority (including conditions as to the carrying out of additional works) are complied with,

(viii) a building control authority to inspect (before it decides whether to grant such a certificate) a building in respect of which an application has been submitted for a regularisation certificate and enabling the authority to grant, if it considers it appropriate, in its discretion, to do so, a regularisation certificate specifying that in its opinion the works, as constructed in accordance with plans, documents and information submitted with the application for the certificate, comply with the provisions of building regulations relating to fire safety, subject to compliance (within the period of 4 months there mentioned) with any conditions attached to the certificate of the kind mentioned in subparagraph (vii),

(ix) the submission to a building control authority of an application for a certificate of compliance with respect to requirements under the building regulations for provision of access to a building for persons with disabilities (a ‘disability access certificate’) and enabling the building control authority to grant such certificate if in its opinion the design of the building or the extension of or material alteration to the building in respect of which the submission is made would comply (subject to any relevant dispensation or relaxation already granted under section 4 or 5 or to any appeal under section 7 which has been allowed) with the relevant requirements of the building regulations,

(x) the submission to a building control authority of an application for a fire safety certificate (in this Act also referred to as a ‘revised fire safety certificate’) or a disability access certificate (in this Act referred to as a ‘revised disability access certificate’) if significant revision is made to the design or works of a building or an extension of or a material alteration to a building in respect of which a fire safety certificate or a disability access certificate has been granted by a building control authority, and

(xi) that a new building, or an existing building in respect of which an extension or a material alteration has been made, shall not be opened, operated or occupied or permitted to be opened, operated or occupied—

(I) unless a fire safety certificate or disability access certificate (or, as the case may require, a revised certificate of either kind) or a regularisation certificate required by regulations under this Act has been granted by the building control authority in relation to the building, or

(II) if such an appeal is made to it, pending the determination by An Bord Pleanála of an appeal under section 7 relating to a refusal to grant any of the certificates or revised certificates referred to in clause (I) or the attachment of conditions to any of them;”,

(d) in subsection (2)(b), by substituting the following for subparagraph (i):

“(i) the form and content of—

(I) certificates of compliance,

(II) applications for fire safety certificates, revised fire safety certificates, regularisation certificates, disability access certificates and revised disability access certificates,

(III) each of the certificates referred to in clause (II),

(IV) 7 day notices and 7 day notice statutory declarations,

(V) applications for certificates of approval and certificates of approval,”,

(e) in subsection (2)(b)(ii), by inserting “7 day notices, 7 day notice statutory declarations, revised fire safety certificates, regularisation certificates, disability access certificates, building energy rating certificates, revised disability access certificates” after “fire safety certificates,”,

(f) in subsection (2)(h)(ii), by inserting “, 7 day notices, 7 day notice statutory declarations, revised fire safety certificates, regularisation certificates, disability access certificates, revised disability access certificates” after “fire safety certificates”,

(g) in subsection (2), by inserting the following paragraph after paragraph (h):

“(ha) the exemption, in specified circumstances, from fees referred to in paragraph (h);”,

(h) in subsection (2)(k), by substituting “regulations;” for “regulations.”,

(i) by inserting after subsection (2) the following:

“(2A) References in subsection (2)(a)(iv) to (xi) to a material alteration of a building include references to a material change of use of a building and, for the purposes of those provisions as they apply in relation to such a material change of use, references in those provisions to—

(a) work,

(b) relevant works, or

(c) the design of works,

shall, in so far as they are applicable to such a material change of use, be construed as references to—

(i) the doing of the acts that constitute the material change of use or, as appropriate, those acts when they are done, or

(ii) in the case of references to the design of works, the various aspects of the material change of use or, as appropriate, any particular aspect of that change of use,

and references to construction of works and cognate references shall be construed accordingly.”,

(j) in subsection (5), by inserting “, 7 day notice, revised fire safety certificate, regularisation certificate, disability access certificate, revised disability access certificate” after “fire safety certificate” in both places where it occurs in that subsection, and

(k) in subsection (6), by inserting “, 7 day notice, revised fire safety certificate, regularisation certificate, disability access certificate, revised disability access certificate” after “fire safety certificate”.

Amendment of section 7 (appeals) of Act of 1990.

6 .— Section 7 of the Act of 1990 is amended—

(a) in subsection (1)—

(i) in paragraph (c), by substituting “approval, or” for “approval,”, and

(ii) by inserting the following paragraphs after paragraph (c):

“(d) section 6(2)(a)(vii), for a regularisation certificate, or

(e) section 6(2)(a)(ix), for a disability access certificate,”,

and

(b) in subsection (3), by deleting paragraph (c).

Amendment of Act of 1990 — new sections 7A and 7B.

7 .— The Act of 1990 is amended by inserting the following after section 7:

“Fees in respect of an appeal.

7A.— (1) Subject to the approval of the Minister, An Bord Pleanála (hereafter in this section referred to as ‘the Board’) may determine that fees shall be payable in relation to appeals under section 7 and, subject to subsection (2), such a fee so determined shall be paid to the Board by the person making the appeal under section 7 at such time as the Board specifies.

(2) The power of the Board in relation to fees referred to in subsection (1) includes a power of the Board—

(a) to determine that different such fees shall be payable in respect of different classes of appeal under section 7,

(b) to exempt a person from the requirement to pay any such fee in such circumstances as it determines, and

(c) to remit or refund in whole or in part any such fee that has been paid in such circumstances as it determines,

and the exercise of the power under paragraph (b) or (c) (as distinct from the determination of the circumstances in which the power shall be exercisable) shall not require the approval of the Minister.

(3) The Board shall review the fees determined under subsection (1) from time to time, but at least every three years, having regard to any change in the consumer price index since the determination of the fees for the time being in force, and may amend the fees to reflect the results of that review, without the necessity of the Minister’s approval under subsection (1).

(4) For the purposes of this section, ‘ change in the consumer price index’ means the difference between the All Items Consumer Price Index Number last published by the Central Statistics Office before the date of the determination under this section and the said number last published before the date of the review under subsection (3), expressed as a percentage of the last-mentioned number.

(5) Where the Board determines or amends fees in accordance with this section, it shall give notice of the fees in at least one newspaper circulating in the State, not less than 8 weeks before the fees come into effect.

Provision with respect to amendment of this Act by S.I. No. 872 of 2005.

7B.— The Minister shall be deemed always to have had the power to make the regulations under section 3 of the European Communities Act 1972 entitled the ‘European Communities (Energy Performance of Buildings) Regulations 2005’ (S.I. No. 872 of 2005) and, accordingly—

(a) the amendment of section 3(2) purported to have been made by those Regulations shall be deemed to have been validly made and to have been in operation as and from the date those Regulations were purported to have been made, and

(b) the Building Regulation (Amendment) Regulations 2005 (S.I. No. 873 of 2005) made in the purported exercise of the powers conferred by sections 3 and 18 shall be deemed to have been validly made and to have been in operation as and from the time that those Regulations provided that those Regulations were to come into operation.”.

Amendment of section 8 (enforcement notice) of Act of 1990.

8 .— Section 8(4) of the Act of 1990 is amended—

(a) in paragraph (b), by substituting “that may be required by the notice;” for “that may be required by the notice.”, and

(b) by adding the following after paragraph (b):

“(c) require a person on whom the notice is served to pay to the building control authority the costs and expenses reasonably incurred by the authority in relation to the investigation and detection of the matters, the subject of the notice, the service of the notice and the preparation and giving of any warnings before the service of the notice, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers,

and, as regards the costs and expenses referred to in paragraph (c), in default of their payment, the authority may, subject to section 9 and without prejudice to subsection (8), recover the costs and expenses as a simple contract debt in any court of competent jurisdiction.”.

Amendment of section 9 (application to District Court in relation to enforcement notice) of Act of 1990.

9 .— Section 9 of the Act of 1990 is amended by inserting the following after subsection (3):

“(3A) If the court makes a determination to which subsection (3)(a) or (b) applies, it shall, unless it is satisfied that there are special and substantial reasons for not doing so, order the applicant to pay to the building control authority concerned the costs and expenses, as measured by the court, incurred by the authority—

(a) in appearing and adducing evidence at the hearing, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and

(b) in so far as they have not been recouped pursuant to the provision (if any) of the enforcement notice referred to in section 8(4)(c), in relation to the investigation and detection of the matters to which the application relates, including costs incurred in respect of remuneration and expenses as aforesaid.”.

Amendment of section 12 (order of High Court in relation to buildings and works) of Act of 1990.

10 .— Section 12 of the Act of 1990 is amended—

(a) in subsection (1) by substituting “the building control authority concerned may apply to the High Court or the Circuit Court for an order” for “the building control authority concerned may apply to the High Court for an order”,

(b) by inserting the following after subsection (1):

“(1A) Where the construction of any building or works to which building regulations apply is or has been commenced or completed and in respect of which—

(a) a fire safety certificate, a disability access certificate or a regularisation certificate is required to be granted and such construction—

(i) is or has been commenced without the fire safety certificate, disability access certificate or regularisation certificate having been granted, or

(ii) is or has been completed without the fire safety certificate, disability access certificate or regularisation certificate having been granted,

or

(b) an enforcement notice has not been complied with,

the building control authority concerned may apply to the High Court or the Circuit Court for an order requiring the removal, alteration or making safe of any structure, service, fitting or equipment, or the discontinuance of any works or restricting or prohibiting the use of the building until the fire safety certificate, disability access certificate or regularisation certificate has been granted and complied with or the enforcement notice has been complied with.”,

(c) in subsection (2) by substituting “and where such an application is made, the High Court or the Circuit Court, as the case may be, may” for “and when such an application is made, the High Court may”,

(d) by inserting the following after subsection (2):

“(2A) If the High Court or the Circuit Court makes an order under this section providing for any of the matters referred to in subsection (1) or (1A), it shall, unless it is satisfied that there are special and substantial reasons for not doing so, order the person against whom the order is made to pay to the building authority concerned the costs and expenses, as measured by the court, incurred by the authority—

(a) in relation to the application under this section, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and

(b) in so far as they have not been recouped by any other means provided under this Act, in relation to the investigation and detection of the matters to which the application relates and the preparation and giving of any warnings before the making of the application, including costs incurred in respect of remuneration and expenses as aforesaid.”,

(e) in subsection (3) by substituting “Any order made by the High Court or the Circuit Court under this section” for “Any order made by the High Court under this section”, and

(f) by inserting the following after subsection (3):

“(4) (a) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land which is the subject of the application is situated.

(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section where the market value of the land which is the subject of the application does not exceed €3,000,000.

(c) The Circuit Court may, for the purposes of paragraph (b), in relation to land that has not been given a market value or is the subject with other land of a market value, determine that its market value would exceed, or would not exceed, €3,000,000.

(d) Where the market value of any land which is the subject of an application under this section exceeds €3,000,000, the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court by order.

(e) In this subsection ‘ market value ’ means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.”.

Amendment of section 17 (penalties) of Act of 1990.

11 .— Section 17 of the Act of 1990 is amended—

(a) in subsections (1) and (2)(a)—

(i) by substituting “€5,000” for “£800”, and

(ii) by substituting “€500” for “£150”,

(b) in subsection (2)(b) by substituting “€50,000” for “£10,000”, and

(c) in subsection (5) by substituting “under this Act” for “to which subsection (1) applies”.

Amendment of Act of 1990 — new sections 17A and 17B.

12 .— The Act of 1990 is amended by inserting the following after section 17:

“Payment of fines to building control authority.

17A.— Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under this Act in proceedings brought by a building control authority, it shall, on application of the building control authority (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the building control authority and such payment may be enforced by the authority as if it were due to it on foot of a decree or order made by the court in civil proceedings.

Costs of prosecution, etc.

17B.— On convicting a person of an offence under this Act in proceedings brought by a building control authority, the court shall, unless it is satisfied that there are special and substantial grounds for not doing so, order the person to pay to the authority the costs and expenses, as measured by the court, incurred by the authority in relation to the investigation, detection and prosecution of the offence, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers.

Evidential value of electronically stored information.

17C.— In any proceedings under this Act, a certificate issued by a building control authority purporting to be a printout of data stored by the authority in electronic format or data stored in photographic, digitised or other modern format, being, in either case, data relating to the performance by the authority of any function under this Act or to any plans, documents or information submitted to it under this Act or regulations thereunder, shall have evidential value.”.