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BUILDING
AND THE
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4 T H R E V I S E D A N D E X P A N D E D E D I T I O N I D A V I D KEANE
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THE ROYAL INSTITUTE OF THE ARCHITECTS OF IRELAND

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BUILDING AND THE LAW
(4th revised and expanded edition)

DAVID KEANE
B.Arch. (NUI) FRIAI, MCI Arb, Barrister-at-Law
KMD Architecture

First edition -July 1993

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Published by the Royal Institute of the Architects of Ireland

Second revised edition - September 1994

Third revised edition -January 1998
Fourth revised edition -January 2003

0 RIAI, 2003. All rights reserved.

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ISBN 0948037 008

Design - John O’Regan (0 Gandon, 2003)

Production - Nicola Dearey
Produced by Gandon Editions, Kinsale, for the RIAI
Printing - Betaprint, Dublin
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THE ROYAL INSTITUTE OF THE ARCHITECTS

OF IRELAND
8 Merrion Square, Dublin 2
tel: 01-6761703 I f a : 01-6610948 / e-mail: info@riai.ie
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BUILDING AND THE LAW
4th edition
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Planning and Development (Amendment) Act 2002
Since the fourth edition of Buildingand the Law went to the printers,
an amending bill was published, mainly to deal with the problems
which had arisen as far as the operation of Part V of the 2000 Ad.
which dealt with social and affordable housing, was concerned.
The Act was signed into law on December 24m2002 and came into
effect immediately. In essence, the amendments revoke the axe
proposal in the 2000 A d requiring social and affordable housing as
an integral part of every substantial housing development It is
thought useful to provide a summary of the proposals. The
amendments to the Planning and Development Act 2000 are:
Section 2. Add new subsection (tr) to definition of 'party to
an appeal or referral*-- (ff) in the case of a
referralunder section 57 (8). the person making
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the referral.'
This amendment is required following the
proposed amendment of Section 57. The
definition of feferrar in section 2 is amended
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by adding - 5 7 to the list of sections referred to.
Section 12. Subsection (16) amended by the addition of (7)
to the l i t of subsections.
Section 19. Subsection (2) is replaced. The new subsection
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is similar except for the introduction of a new
subsection (2Ka). which allows a local area
plan to indude zoning objectives.
Section 20. Subsection (3) (d)(ii) is unchanged down as far
as the word %solution' in line 8 of the
subsection, where two new sub-subsedions
are added to deal with the following new
subsections (e), (9. (9) and (h).
Insert to 'Building and Law', Fourth Edition, By David Keane
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These new subsections (e). (9. (9) and (h) have
been introduced affecbng the members of the
authm'ty in dealing with a local area plan.
In sho& the new provisions provide for the situation
where a proposed modification would be a material
alteration of the plan and indudes notification and
submission procedures.
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Section 37 This amendment rectifies an error in the 2000 A d
and substitutes the phrase 4n resped of which a
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deasion to grant permission has been made' for "in
respect of which permission has been granted' in
both subsections (6Xa) and (6)(d)(i).
Section 49. Subsection (7)(c) has Waste m t e f substituted for
Wste. water
Section 50 Adds Sn a d a n c e with section 216" to
subsection (2Xa) and adds (iii)3n the performance
by it of a function transferred under Part XIV to
subsection (2)(b).
Subsection (4Ka)Oi) is amended by adding (iii) after
(axii) and by changing 'published" to 'sent or
published, as appropriate'.
Subsection (4Hb)(i) has 'planning or local authority"
substituted formplanningauthority'.
Subsection (4)(c)(i)(v) is altered by substituting "in
the case of a deasion of a local authority or the
Board in the performance by it of a function
transferred under Part X l V for 9n the case of a
deasion of the Board under Part XIV.
January 2003
 sedion 57 Subsections (4) and (5) have the words *or the
BoaW added afler the words "planning
authoritf.
Subsections (8) and (9) are replaced. The new
subsection (8) allows the right of an appeal to
the Board in respect of a declaration regarding
a protected structure. Subsection (9) is a
reworded version of the previous subsection (8)
to allow for the involvement of the Board.
The previous subsection (9) relation to a
section 5 reference is omitted.
section 96 This is the major amendment to the 2000 Act It
starts by altering. subsection (I) so that the
words 'on land to which such an objective
applies' appear afler the word %ouses' on line
6 of the previous subsection, and the words 'on
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such land" afler the word 'houses" on line 8.
Subsection (2) changes the word .maf to
'shalr as regards the agreement proposed, and
adds the Mxds relating to the agreement
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'providing. in accordance with this section, for
the matters referred to in paragraph (a) or (b) of
subsection (3p
Subsection (3) referred to has been largely
altered. It sets out the options available to
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applicants as follows. The first subsection (3)(a)
is largely the same as before and provides for
the transfer of the land, which forms part of the
planning application.
Subsection (b) sets out the other choices
available to the applicant Under the 2000 Act
this was limited to the transfer of either
completed houses or serviced sites. However.
Insert to 'Building and Law', Fourth Edition. By David Keane
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subsection (12). which is revoked, also allowed
the payment of money in lieu of house or sites.
The new subsection allows the transfer of
houses. sites or the payment of money.
Significantly, however. the transfer of sites or
houses in other parts of the planning authority's
functional area is also allowed. To soften the
radical change from the 2000 Act. there is a
pious aspiration in subsection (3)(c)(iii)
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requiring the planning authority to consider W e
need to counterad undue segregation in
housing between persons of different social
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background in the area of the authority' before
entering into any agreement.
Subsection (5) is altered to provide that all
disputes arising, except for those relating to
*subsection(7). shall be dealt with by the Board.
Subsection (15) relating to the withering of
permissions is revoked. A new section ( S A )
confirms the validity of permissions that might
have been affected by the old subsection (15).
A new section, 96B. proposes to impose a levy
on all houses to which the old subsection (15)
would have applied. The sale of such houses
shall be subject to a levy of 1%where the cost
is over €270.000 and a levy of 0.5% where the
cost is less than €270.000. The levy is to be
paid to the planning authority. and to be kept in
a separate account and may be spent only as
capital on housing projects. .
Section 97. The exemption certificate area has been
halved, from 0.2 to 0.1 hectares [subsection
97(3Xb)l
January 2003
 Contents

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Foreword by Peter J Hanna 8

Preface to First Edition 9

Preface to Fourth Edition 10

Chapter 1
1.1
1.2
1.3
1.4
1.5
1.6
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The Framework
Introduction
Local Government in Ireland
The Legal System
European Union Law
Registration of the title ‘Architect’
RIAI Standard Documents
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14
15
17
20
21

and the Architect’s Appointment 26

1.7 Cases Referred To 32

Chapter 2 Planning 33
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2.1 The Law 35
2.2 When is Permission Required? 40
2.3 Making an Application 58
2.4 Planning Decisions 92
2.5 Cases Referred To 134
2.6 Planning Checklist 138
2.7 RIAI Planning Application Checklist 140
2.8 Definitions 150

Chapter 3 The Environment 160

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3.1 Introduction 161

3.2 The Legislation 162
3.3 The Environmental Protection Agency Act 1992 166
3.4 The Waste Management Acts 1996 and 2001 169
3.5 Environmental Freedom of Information 174
3.6 Noise 175
3.7 Environmental Checklist 176
 BUILDING AND THE LAW

Chapter 4 Building Regulations 177

4.1 Introduction 178

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4.2 The Legislation 180
4.3 The Building Regulations 183
4.4 The Construction Products Directive 184
4.5 Exemptions 186
4.6 Alterations and Changes of Use 192
4.7 The Control Mechanism 194
4.8 Dispensation and Relaxation 199
4.9 Appeals 199
4.10 Fees 200
4.1 1 Enforcement and Penalties 200
4.12 Transitional Provisions 202
203
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Chapter 5
4.13

5.2
5.3
5.4
Building Regulations Checklist

Safety at Work
5.1 Introduction
The Legislation
The Regulations (S.1.481 of 2001)
The Client’s Duties
205
206
208
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216
5.5 Duties of Project Supervisor for the Design Stage 219
5.6 Duties of Project Supervisor for the Construction Stage 220
5.7 Duties of Designers 222
5.8 Liability, Enforcement and Penalties 223
5.9 Cases Referred To 224
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5.10 Health and Safety Checklist 224

Chapter 6 General Building Legislation 226

6.1 Shops (Conditions of Employment) Act 1938 227
6.2 Local Government (Sanitary Services) Act 1964 227
6.3 Housing Act 1966 228
6.4 Urban Renewal Act 1986
Dublin Docklands Development Authority Act 1997
Urban Renewal Act 1998 229
6.5 Derelict Sites Act 1990 23 1
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6.6 Local Government (Multi-Storey Buildings) Act 1988 233

6.7 Miscellaneous 234
6.8 Cases Referred To 243

Chapter 7 The Building Contract 244

7.1 The MA1 Forms 245
7.2 Standard Forms 245

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 BUILDING AND THE LAW

7.3 The Parties (and others) to the Contract 248

7.4 Formation of the Contract 248

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7.5 Determination of the Contract 250
7.6 The RIAI Contracts - A Working Guide 252
7.7 The Works 252
7.8 The Time 254
7.9 The Contract Sum 255
7.10 Sub-contractors and Sub-letting 257
7.11 Insurance 259
7.12 Collateral Agreements or Warranties 264
7.13 Architect’s Responsibilities and Duties 266
7.14 Cases Referred To 27 1

Chapter 8 Dispute Resolution 273

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Chapter 9
8.1
8.2
8.3
8.4
8.5
Introduction
Litigation
Conciliation and Adjudication
Arbitration
Cases Referred To

Responsibility and Liability

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274
275
279
286

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9.1 Introduction 288
9.2 The Architect’s Responsibility 288
9.3 The Relationship between the Parties 295
9.4 The Widening of Liability 298
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9.5 The Statute of Limitations 302
9.6 EU Proposals on Liability 306
9.7 The Expert Witness 307
9.8 Cases Referred To 308

Chapter 10 Warranties and Opinions 31 1

10.1 Collateral Warranties 312
10.2 Parties Seeking Collateral Warranties 315
10.3 The RIAI Form of Collateral Warranty 316
10.4 Decennial Insurance as an Alternative 317
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10.5 Opinions on Compliance 318

10.6 Cases Referred To 320

Index 32 1

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 Foreword

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It has given me great pleasure to be invited to introduce this book by David Keane,
a detailed and scholarly companion volume to his authoritative book on MA1
Contracts.

In this book, BUILDING AND THE LAW,David Keane has applied his extensive knowl-
edge of the law to the architectural and building professions. He has started with the

architect in Ireland.
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Constitution and guided the reader through the law relating to Local Government in
Ireland and on to an overview of all the major legislation affecting the practising

In addition to reviewing national legislation, David Keane has set out clearly how
European regulations and directives enacted under the Treaty of Rome and other
treaties have had a major influence in this country since we first joined the European
Community.

Up to relatively recently, building was regulated by a range of legislation going back

over 120 years, but since the enactment of the Building Control Act 1990 which
repealed Building Bye-Laws enacted under the Public Health Acts of the late nine-
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teenth century, the Local Government (Planning and Development) Act enacted in
1963 is now the starting point for the majority of legislation affecting building in
Ireland.

Most of the significant legislation has been enacted in the last ten years, and David
Keane’s text brings together in a coherent and comprehensive way the essential
legal elements affecting the practicing architect, whether brought about by national
legislation or by the transposition into Irish Law of European Regulations and
Directives.

Not alone has he succeeded admirably in this monumental task, but in addition he has
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examined the prospect for the future, set out European trends in a number of key
areas, and has summarised the essential details of attempts to harmonise liability
within all EC States.

I believe that this book will be of great assistance not alone to architects, but will
benefit all those whose professions are directly or indirectly affected by law as if
affects planning, the environment, and building in Ireland. He has clarified the gen-

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 BUILDING AND THE LAW

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era1 application of European and Irish legislation, and has made a substantial contri-
bution to the science or knowledge of law as it affects the architect in Ireland and in
Europe.

I have pleasure in expressing the compliments and gratitude of the Council of the
Royal Institute of the Architects of Ireland to David Keane for this work, and rec-
ommend it without reservation.

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PETER J HANNA
B.Arch (Nul) FRIAI, RIBA
President, Royal Institute of the Architects of Ireland, 1993

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 Preface to First Edition

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The introduction to Chapter 1 describes the purpose of this guide. Basically it is
intended as a work of reference, so that the law relating to a particular problem can
be readily identified. There are a good many books dealing with particular areas of
the construction world such as planning, the contract, the environment and so on, but
it seemed that there was a need to provide a source which would identify, in a gen-
eral way, the laws in question and enable a detailed answer to be found by reference
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to the piece of legislation itself.

Even though this guide is not intended to be a formal textbook, I have listed all the
cases referred to in the text so that anyone interested in any particular subject can
refer to the reports of the cases in the legal journals.

The law relating to design and construction is now extremely complex and some
areas of this law are not as certain as they might be. When a problem seems to be
entering more the world of law than that of building, formal legal advice should be
sought.

When, some years ago, I was writing THERIAI CONTRACTS - A WORKING GUIDE,it
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fell to me to thank a number of people who had made the task easier. Their support
and encouragement continue: John Graby, General Secretary of the RIAI, Judge
Ronan Keane of the High Court, the partners of Keane Murphy Duff, and Ian Duff
in particular, past president of the RIAI John O’Reilly for help on Europe and syn-
tax, and to Hilary Kirk for again unravelling my handwriting. My wife, Dr Maureen
Keane, was a continuing help. Finally I would like to put on record my indebtedness
to the late Judge Niall McCarthy of the Supreme Court. In an expert and analytical
way that masked a kindness and an interest he added an extra dimension of enjoy-
ment to the work required both on this book and on my previous one. 1 am far from
alone in missing him.
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The information contained in this book is up to date, as far as I am aware, to the 1st
July 1993.

DAVID W A N E October 1993

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 Preface to Fourth Edition

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The event which gave rise to this edition was the passing hlly into law on the 11th
March 2002 of the Planning and Development Act 2000 together with the Planning
and Development Regulations - S.I. 600 of 2001. These two pieces of legislation
consolidated, with some significant changes and additions, the previous nine plan-
ning acts and innumerable regulations. Naturally there has not been any significant
case law arising yet from this legislation.

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It does, however, seem to me that the legislation concerning planning has now
reached a stage of complexity as to make it almost unworkable. It cannot have been
the intention of the framers of the 1963 Planning Act that changing the tiles in the
bathroom of a small terraced house would require planning permission. In 2001 the
Ombudsman gave it as his opinion that the whole planning system was near collapse.
In my view, this is largely as a result of our unique, and virtually unlimited, right of
third party appeal. More recently the Comptroller and Auditor General was very crit-
ical of the lack of consistency in planning decisions. 1 must agree with both of these
comments.

Over the years since the first edition of this book in 1993 quite a number of organi-
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sations have changed their names. A good Example would be the recent re-naming
of the former Department of Arts, Heritage, Gaeltacht and the Islands which is now
the Department of Community, Rural and Gaeltacht Affairs. The name current at the
date of the legislation being discussed is used in the book. All amounts referred to in
legislation as being in Irish pounds have been converted to euro.

When writing the third edition in January 1998 I said that an event which might have
a significant effect on the future of many aspects of the construction field was the
publication in June 1997 by the Department of the Environment of the report of the
Strategic Review Committee of the building industry, entitled BUILDING OURFUTURE
TOGETHER. The dealt with the very wide range of issues and made very firm recom-
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mendations, incorporating a timetable for the various actions required. This report
led to the establishment of the Forum for the Construction Industry, a body repre-
sentative of all interested parties in the building industry drawn from both the private
and the public sectors. The objective of the Forum is to oversee and monitor the rec-
ommendations of the Strategic Review Committee. In tum, the Department has indi-
cated that it intends to implement this report as fully as possible. Many of the rec-
ommendations have already been implemented. Some, such as the production of

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national standard forms of contract, registration of the title 'architect', and others are
well advanced.

I would like to thank, at this stage, the former Minister of the Environment, Noel
Dempsey, and his Department for encouragement generally over the years, and in
particular Michael McCarthy of the Construction Division for help and assistance in
producing this edition in a comparatively short space of time.

DAVID KEANE
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The information in this edition is up to date to the 1st December 2002.

December 2002
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