Have we learned nothing? Last week in the Dáil, there was an attempt to ram through a new law with the minimum of scrutiny.
That the subject matter involved building regulations should immediately raise a red flag.
Ironically, this stroke was attempted during a debate on the shortcomings of other building regulations.
Legislation is currently going through the Oireachtas to deal with the defective concrete block scandal that has hit, particularly but not exclusively, the North-West.
Earlier this year, very different legislation concerning remediation for defective apartments went through the Oireachtas.
New laws, and literally billions of euro, are required to make good on the shortcomings of building regulations in the past.
Now, housing minister James Browne is attempting to push through further laws without the kind of scrutiny that could unearth inadvertent shortcomings.
The past has shown that when some laws are not as properly scrutinised as they are being made, the cost is multiplied down in the Four Courts at some future point.
Apart from that, we are living in a housing crisis when we have already seen that shortcuts simply do not work out
The new regulations were introduced to the Dáil on December 9 as an amendment to defective concrete block legislation.
These are, to all intents and purposes, separate issues. Treating the regulations as an amendment means it is not subject to the same scrutiny as primary legislation.
Some in the opposition who have a grasp of the issue were taken aback.
Sinn Féin’s Eoin Ó Broin said he feared that the lack of scrutiny would allow a small but growing number of developers, “who are already in substantial non-compliance of planning and building control requirements, to further game the system to allow themselves to evade full compliance”.
Labour’s Conor Sheehan pointed out that, in his short time in the Dáil, he had witnessed the minister and his department “do things like this last minute, [and] railroad them through without giving us enough time to properly consider what the implications of these changes are”.
He said that, when it came to a vote on this issue, “Fianna Fáil and Fine Gael TDs will come in here, sit at their seats and push the button to vote for this, but they will not have a foggy notion what they are voting on”.
Sheehan is probably correct there, but it is also the case that those on the opposition benches — with the exceptions of Ó Broin, Sheehan, and a few others — equally wouldn’t have a foggy notion what they’re voting against simply because it has not been trashed out.
In short, the amendments propose to grant greater powers to the minister of the day to compel builders to comply with regulations.
That is well-intentioned, but can also open up avenues for developers who are less than scrupulous in how they go about their business
The problem arises, to some extent, as a result of the old Irish tendency to go from one extreme to another.
Roll it back to 2014.
A raft of new regulations were enacted in response to revelations about shoddy and dangerous building during the Celtic Tiger years.
Those issues reverberate loudly today as various remediation schemes now in train are going to cost the exchequer billions. This is separate from the wide and varied impact and pain inflicted on innocents who bought some of these defective homes.
One element of the new regulations was that a paper trail would be created with each new building in order to ensure no shortcuts were taken at every stage.
This meant there would have to be certificates issued at various points from commencement to completion. Failure to do so could lead to the development being declared unauthorised and ultimately demolished.
Conforming to standards
All of this was well-intentioned. The problem was what happens if there is a genuine oversight in issuing the correct certificates within the specified timeframe.
This arose in a case that came before the High Court in 2023. A corporate vehicle called Coreet Limited had built a small estate of homes in Co Meath.
There was no suggestion that the finished development was other than properly built and conformed to standards.
Yet, the county council refused to issue a certificate of readiness because Coreet had not complied with one of the timeframes for issuing a certificate at an earlier stage. Legally, it appeared that the council was constrained by the 2014 regulations.
In any event, the matter was settled — but it did highlight how the sanction for technical non-compliance can be completely disproportionate. An oversight should not attract a punitive sanction. Yet, under the law, it could.
The minister has moved to regularise this by granting his office more powers. On the face of it, this makes sense.
However, the devil of unintended consequences lurks in the detail. What of the developer who sees in this law the opportunity to build away without compliance and then ask for retention? Is a minister, during a housing crisis, going to refuse?
This is not idle speculation. There are two cases currently before the courts in which developers built without regard for basic regulations, and they are now either looking for retention or exemption.
Last week, the High Court rejected an appeal by developer Vincent Cosgrave to retain an extra seven apartments in a development called Larkfield House in Clondalkin, West Dublin. The former fitness centre was developed by Mr Cosgrave in 2018, with permission for 37 apartments. He went ahead and built 44, completely contrary to the regulations.
As of now, these will have to be demolished.
No planning permission
Under the new proposed regulations, there may well be wriggle room for developers to ensure that they can effectively game the system. Whether or not this is a real threat is unknown, because there has been no scrutiny of the proposed regulations.
Another case that the Irish Examiner has reported on is that in Brittas, Co Dublin.
Paddy Byrne is a developer who built Millfield Manor in Newbridge, Co Kildare, where a fire razed a terrace of six homes within a half hour, exposing huge fire safety defects in the estate.
He is now behind a company that wants to build modular homes on an old site in Brittas. Work is already advanced in the construction, yet South Dublin County Council is looking for an injunction.
There is no planning permission for the development. No commencement notice was issued. Byrne claims that planning is not required, and the High Court will rule on the matter in the new year.
Yesterday, the High Court ordered Byrne’s company to stop building and to demolish the units already constructed.
It is unclear how such a case would have been dealt with under the new regulations, and whether there is a possibility that the minister of the day could intervene.
Yet, there has been minimal scrutiny of the proposed changes. The housing spokesperson for the Social Democrats, Rory Hearne, referenced this during the brief debate on the matter on December 9.
He pointed out that the minister has a legal background.
“I do not think he would consider it fair to be thrown into a court, and be expected to make decisions, without all the evidence and advice to hand,” Hearne said.
“In a way, he is asking us to do the same — to make decisions on important, fundamental legislation without having all the information or advice, including the advice from the Attorney General, to hand.”
A spokesperson for the Department of Housing said the amendments were “signalled as a priority on this autumn’s legislative programme”, and were the reason for inclusion on the defective concrete block bill “was a matter of timing”.
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