Mick Clifford: Citizens will pick up the tab for building defects

Legally, builders including Flynn & O’Flaherty are only responsible for defective work if it is discovered within seven years of construction
Mick Clifford: Citizens will pick up the tab for building defects

After Ires Reit spent €60m on 146 Flynn & O’Flaherty homes at the old Phoenix Park racecourse it discovered problems with some of the apartments. Picture: Moya Nolan

Nobody is responsible for anything which leaves citizens to pick up the tab.

So it goes with the fallout from the reckless building boom in this country during the Celtic Tiger years.

We now know, through the fruits of a working group that reported last July, that up to 80% of apartments built between 1991 and 2013 have fire safety defects or water ingress, or structural safety issues. Or a combination of all three.

This accounts for around 100,000 homes. The working group report says this will cost just shy of €3bn to fix.

Who pays for it? Many if not most of the entities responsible for the building work are no more.

Some central individuals have reappeared, Phoenix-like, in different guises but they escape responsibility.

Enter Josephine and Joe Citizen with a chequebook perhaps better be directed in providing much-needed services, but such is the way of the world as we know it.

What happens, however, if the builder is still around in the same guise?

Today’s Irish Examiner reports on a case in which the builder in question is not just still in business but working on the same site as stricken homes, yet its principals are washing their hands of the substandard work that has been exposed.

Flynn & O’Flaherty is described on its website as an “independently financed family business that has delivered some of Dublin’s finest residential and commercial developments over the past four decades”.

Defects were discovered in some of the homes developed by Fynn & O’Flaherty at the old Phoenix Park racecourse development in Castleknock. Dublin. Picture: Moya Nolan
Defects were discovered in some of the homes developed by Fynn & O’Flaherty at the old Phoenix Park racecourse development in Castleknock. Dublin. Picture: Moya Nolan

Its team “consistently delivers the highest standards in design, construction, specification finish and landscaping”.

The company is unlimited which means it doesn’t have to publish annual accounts

By far its biggest development has been at the old Phoenix Park racecourse. In 2003, An Bord Pleanála gave the company the go-ahead to build 2,314 homes on the site following a battle with locals who objected to the size.

Building got underway within three years. The first phase was completed before the financial crash of 2008 and included around 550 dwellings. The second phase was delayed due to economic circumstances but construction has been back on track in recent years.

Fast forward to 2021 and build-to-rent fund Ires Reit forked out €60m to buy 146 homes from the developer. The average price paid per apartment was €411,000. 

The fund then conducted a fire safety audit and discovered a number of problems: 

We identified that some apartments would need to have safety measures upgraded to ensure that they are in line with fire safety standards,” a spokesperson told the 'Irish Examiner'.

Ires Reit did the remedial work in the dwellings they had bought, but further problems with fire stopping in common areas are a matter for the owners’ management company (OMC).

Neither Flynn & O’Flaherty nor the management agent for the OMC, Wyse Property Management, will say when exactly they became aware of the defects. Nor is it known whether the defects within apartments apply to all or most of the 550 built during phase one and to what extent owners know about the defects. 

Dublin Fire Brigade has confirmed that the fire officer has not been informed about these issues.

FOF is still building on the site 

All of this follows a similar path to how defects in dozens of developments have been discovered and tumbled out into the public domain.

The problems are discovered often many years later when either a major investor does a forensic audit or a fire exposes the shortcomings in construction.

A big difference here is that Flynn & O’Flaherty is still in business and on-site completing the later phases of dream homes in this allegedly high-end development.

In a small minority of cases involving defects in recent years, a developer who is still in business has taken responsibility for substandard work and assisted in remediating it.

What of the developer of the Phoenix Park racecourse?

An owners’ management meeting held in October was briefed on efforts to have the defects remediated and buildings made safe.

The gathered owners were told that “Flynn & O’Flaherty construction, the main contractor, which is also an unlimited company, provided a letter of confirmation to the architects confirming that the development as constructed was substantially in compliance with all relevant sections of the building regulations.”

The defects that have been uncovered in the last year completely dispute the contents of that letter, which was dated July 5, 2006.

The owners were also told that the company wants nothing to do with attempts to address the problems.

Flynn & O’Flaherty is still in business (indeed it's working on another phase of the Phoenix Park development) but Irish law only covers substandard work discovered up to seven years after construction. Photograph Moya Nolan
Flynn & O’Flaherty is still in business (indeed it's working on another phase of the Phoenix Park development) but Irish law only covers substandard work discovered up to seven years after construction. Photograph Moya Nolan

“The management company wrote to Flynn & O’Flaherty Construction who replied advising that they could see no basis to warrant their involvement and noting that the apartment blocks were completed approximately 18 years ago.”

There you have it. Nothing to do with us, guv, the past is a different country. Legally, the company is on safe ground.

The law only covers substandard work discovered up to seven years after construction, even if, as in the case of fire safety issues often hidden behind walls, can go, and have gone, undetected for much longer.

When did FOF learn of the defects? 

The current phases of home building being done by Flynn & O’Flaherty comes under the BCAR regulations, implemented in 2014 in response to the uncovering of major fire safety problems that necessitated the evacuation of Priory Hall in 2014.

The principal difference with the former self-certification is that there is more — the extent of which is disputed — regulation and inspection required.

The Irish Examiner submitted questions to Flynn & O’Flaherty about whether the company had different approaches to achieving what it describes as the “highest standards” between phase one, pre-BCAR and phase 2, post-BCAR.

“Did FOF [Flynn & O’Flaherty] use different methods of construction for fire stopping in the common areas during this [the second] phase of building and if so would it not have become apparent that the previous method or practice was not of sufficient standard?”

This was one of a number of questions submitted to the company’s office about the fire safety defects.

Despite repeated attempts to make contact, Flynn & O’Flaherty did not acknowledge receipt of our correspondence and issued no reply.

Similarly, Wyse Property Management did not acknowledge receipt of questions or issue any reply.

Keeping the head down has been a tactic used by many as details of the shoddy work behind the walls of Celtic Tiger developments have tumbled out.

Meanwhile, an interdepartmental body is designing a redress scheme for the thousands who have, through no fault of their own, found out that they are living in often dangerous homes.

Josephine and Joe Citizen will be picking up the tab which is estimated at €2.8bn, but form suggests the real figure could climb well above €3bn.

Paying for the mistakes of an exclusive club, whether it be in the banking or development sectors, has long turned into a national habit.

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