Philip Starling – McKellen Starling Associates

Building Regulations Completion Certificates

It is, of course, good advice to ensure that your builder provides you with a Building Regulations Completion Certificate from the local authority building control officer or approved inspector before you settle the final account. It is likely that you will need the certificate as evidence of compliance with the Regulations when you come to sell.

But what does the certificate actually mean?

There is a common misconception that the issue of a certificate from the inspecting body confirms that all of the works comply with the Regulations. Even when confronted with blatant defects, unscrupulous builders will offer the existence of a certificate as evidence that building control have ‘signed off’ the works and so they (the contractors) cannot be expected to carry out any remediation.

The officer will, using reasonable skill and care, inspect the works and certify that these comply with the Regulations; but it is not the building control officer’s job to ‘snag’ the works for the builder and, inevitably, circumstances will arise where non-compliant works are certificated in error.

The local authority has a duty to enforce the Regulations for up to two years after the works are completed. During the first year they can serve an enforcement notice on the builder; in the second year it is the owner who will be pursued.

Be aware, when procuring building works and, if in doubt, seek assistance from the local authority building control department or a chartered building surveyor.

News

CDM 2015

The Construction (Design & Management) Regulations 2015 (‘CDM 2015′) come into force on 6 April 2015. The revised regulations bring significant changes to the management of health & safety within the construction industry.

The role of CDM co-ordinator has been abolished. Instead, for projects with more than one contractor, the client must appoint a ‘principal designer’. The definition of ‘contractor’ includes sub-contractors, so the vast majority of projects will be affected.

The principal designer’s role includes planning, managing and monitoring the pre-construction phase and assisting the client in the preparation of pre-construction information. The principal designer will also be responsible for preparing the Health & Safety File.

There are also changes to the notification requirements: under CDM 2015 projects must be notified to the HSE if work on site will:
a) last more than 30 days and have more than 20 persons on site at any point, or
b) exceed 500 person days.

CDM 2015 now applies to domestic clients, meaning that CDM becomes relevant on small domestic projects, which were previously exempt. On domestic projects the client’s role will be fulfilled by the contractor or principal contractor, or by the principal designer, so reducing the burden on householders.

The Approved Code of Practice will be withdrawn and replaced with HSE ‘L Series’ Guidance.

News

New Law on Japanese Knotweed

It is reported that banks are becoming increasingly reluctant to lend against properties that could be affected by the spread of Japanese Knotweed. Once imported as an ornamental plant for landscaping, Japanese Knotweed is now listed in Schedule 9 of the Wildlife and Countryside Act 1981, making it an offence to allow the plant to spread or cause a nuisance. However, there is currently no obligation (in England and Wales) requiring existing landowners to treat or remove outbreaks on their own land. The Law Commission report Wildlife Law: Control of Invasive Non-Native Species, concluded that such species pose a significant threat to both biodiversity and the economy – the cost of removing Japanese Knotweed during construction of the Olympic Park pre-2012 is estimated to be c£70m. The 2014 Infrastructure Bill proposes to amend the 1981 Act so that, where agreements cannot be reached between landowners, an order can be made to compel landowners to control invasion of non-native species or otherwise grant the authorities the right of entry to survey or carry out remedial works. Failure to comply with such an order would be a criminal offence. But a word of warning for sites earmarked for development – Japanese Knotweed can lay dormant for up to 20 years, so even it the invasion has been treated and apparently killed-off, the soils affected will still be considered to be a controlled waste or the soils may require further remediation.

News

CDM2015 set to raise standards in Health & Safety in Construction.

The Association for Project Safety and the Health & Safety Executive, via the new CDM2015 Regulations, will be working to see an end to the days of poor quality CDM Co-ordination.

The days of simple form-filling, paper pushing, a lack of project team involvement or provision of advice and guidance are, hopefully, coming to an end.

For all but the simplest of projects, the industry should look to the Appendix 5 guidance for assessing the competence of a CDM Co-ordinator, i.e. someone who is professionally qualified to Chartered level in a relevant construction related institution, has validated CPD in this field and a typical additional qualification (e.g. membership of the Association for Project Safety) and evidence of significant work on similar projects with comparable hazards and complexity.

The proposed Principal Designer role will have a legal responsibility for co-ordinating health & safety through the design phase. Designers are usually good co-ordinators as this is part and parcel of a designer’s role. Designers need to consider the Principal Designer role as less about being an expert in health & safety and more about being a good co-ordinator of information and making sure they have the right advice to hand.

Source: APS Digest Issue 30 08/14

News

New Guidance on Legionnaires’ Disease

This guidance is for dutyholders, which includes employers, those in control of premises and those with health and safety responsibilities for others, to help them comply with their legal duties. These include identifying and assessing sources of risk; preparing a scheme to prevent or control risk; implementing, managing and monitoring precautions; keeping records of precautions and appointing a manager responsible for others.

The guidance gives practical advice on the legal requirements of the Health and Safety at Work etc Act 1974, the Control of Substances Hazardous to Health Regulations 2002 concerning the risk from exposure to legionella and guidance on compliance with the relevant parts of the Management of Health and Safety at Work Regulations 1999.

The guidance is in three parts:

In addition, L8: The control of legionella bacteria in water systems has been updated and receives ACoP status. Audit checklists are also available from the HSE.

INDG458: Legionnaires’ disease. A brief guide for dutyholders remains unchanged.

Source: HSE

News

Removing plaster from a Party Wall

Section 2(2) of the Party Wall etc. Act 1996 contains a list of operations which an Owner is entitled to carry out. Within that list, section 2(2)(f) confirms the Building Owner’s right ‘…to cut in to a party structure for any purpose (which may be or include the purpose of inserting a damp proof course);’ .

However, there also exists the legal principle of “De Minimus Non Curat Lex” (i.e., the law does not concern itself with trifling matters) and it has long been considered that this principle applies to certain works under section 2(2)(f) (e.g., drilling holes for lightweight fixings, etc.).

The debate amongst Party Wall Surveyors as to whether the removal of plaster from a party wall can be considered ‘de minimus’ was addressed by HH Judge Bailey in the recent case of Kelliher -v- Ash Estates Ltd. and Normand Developments Ltd. [2013]. His answer? …….‘it depends’.

In Kelliher -v- Ash, removal of the plaster finish (at ‘No.21’) was carried out using electric drills fitted with chisels. The noise and vibration was enough to alarm builders working in the adjoining property (‘No.19’). There were many other factors to take into account, but ultimately, and amongst other things, the plaster at No.19 became de-bonded and had to be replaced.

Returning to the question as to whether the removal of the plaster should fall within section 2(2)(f), HH Judge Bailey held that the answer depended on how the work was done. If the plaster was in poor condition and could be removed easily it would not be within the Act; but if it is well adhered, and requires percussive machinery to remove it, the Act is engaged.

“As soon as an operative, holding an electric or other Bosch tool whether with a drill end or a spade end, so attacks the plaster that he goes into even the very edge of the brickwork, comprising the party wall, he is then in a position where as I see it he is cutting in to a party structure, for any purpose and in this of course (sic) the removal of plaster, which is covered by section 2(2)(f) of the Act”.

The case clarifies that removal of plaster from a party wall may engage the Act depending on the method of removal used. Owners will need to consider this before ‘soft-stripping’ buildings during refurbishment.