Are Third Party Design Certifiers Compliant?

Dec 05, 2016

The Building Control (Amendment) Regulations 2014-2015 have introduced a number of new roles and definitions to the Irish Construction Industry. One of these is the Design Certifier. We are aware of a number of projects undertaken to the current Regulations where the use of a non-designing, third party Design Certifier has been implemented.

The term or definition of “Design Certifier” does not feature within the text of the Regulations, neither the Building Control (Amendment) Regulations 2014 (S.I. No. 9 of 2014) nor the Building Control (Amendment) (No. 2) Regulations 2015 (S.I. No. 365 of 2015). The Building Control (Amendment) Regulations 2014 however does contain a “Design Certificate – Form of Certificate of Compliance (Design)” within the second schedule.

The Code of Practice for Inspecting and Certifying Buildings and Works defines the Design Certifier as the “person who signs the Certificate of Compliance (Design)”. The Design Certifier must be a Chartered Engineer, Registered Architect or a Registered Building Surveyor. The Code of Practice also requires the Design Certifier to “be competent to carry out their design and to co-ordinate the design activities of others for the works concerned”.

In order to successfully lodge a Commencement Notice for a project and to enable works to start on site, the Design Certifier must sign a statutory Design Certificate. The certificate requires the Design Certifier to confirm the following statements:

  • I have been commissioned by the building owner to design…
  • I am competent to carry out my design and to coordinate the design of others…
  • …plans, calculations, specifications, ancillary certificates and particulars… have been prepared… by me, and by other members of the design team...

By signing this statutory Design Certificate the person is confirming that they have been appointed to and prepared a design for the project. Similarity, the Code of Practice requires that a person be competent to undertake their design of a project. Based on the wording of the statutory design certificate and the code requirements for the role, we are of the opinion that the use of a third party, non-designing Designer Certifier is not valid. A non-designing party cannot genuinely sign that they have been commissioned to design. Neither can they sign to the effect that they have prepared plans, calculations, specifications, etc for the project. As a result we believe this could have legal and insurance ramifications for a project and those involved.

Should the statutorycertificate be found to be non-conforming, the signatory can be held liable for the consequences. As envisaged in the 1990 Building Control Act, failure to comply with the Regulations could lead to fines and/or imprisonment. The Building Owner has a duty with regard to appointments on a project. Knowingly appointing someone as Design Certifier that is not designing could have ramifications for the Building Owner under the same Regulations.

Our advice to clients/Building Owners –Do not appoint a Design Certifier who is not designing on the project. We recommend the appointment of an existing design team member to the role of Design Certifier.

The above article was written by Brian Lahiff and published on the BRegs Forum, click here

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