3rd August 2010
Ms. Ann Fitzgerald.
Chief Executive,
National Consumer Agency.
4 Harcourt Road,
Dublin 2.
Dear Madam,
I am writing to compliment you on your excellent report on the Building Regulations and their Enforcement in relation to the Home Construction Industry in Ireland, and to let you know that we have taken the liberty of referring to it in correspondence with the Minister for Environment, Heritage and Local Government, and others.
We have, for the best part of two decades, been trying to persuade the Department of Environment, Heritage and Local Government (DOELG) to introduce some logic, standards and best practice to the Building Regulation Part H – Drainage and Waste Water Disposal – without result.
You will see from the enclosed correspondence that the DOELG is neglecting to provide protection to consumers where septic tanks or wastewater treatment systems are supplied. You will also see that the DOELG has fixed liability on consumers for issues of pollution, risk to public health etc, and facilitated a situation whereby others in the supply chain such as designers, suppliers, installers etc. can walk away from their consumer and environmental responsibilities.
The European Court of Justice (ECJ) has already adjudicated on this issue with regard to groundwater pollution by domestic septic tanks and other wastewater treatment and disposal systems. The ECJ has ruled that the Irish legislative structure, which delegates responsibility for dealing with interpretation and implementation of Irish and EU law in the area to local building control authorities, is in conflict with Construction Products Directive 89/106/EEC. The ECJ has also stated that compliance with the Construction Products Directive requires that these issues be dealt with in primary legislation by central government, and not left to the purview of local authority bye-laws.
The Building Regulations Advisory Body (BRAB), which is currently reviewing the Building Regulation (Part H), has received various submissions on the subject. Your nominee to BRAB will no doubt confirm that the Department is determined not to make any reference to the requirement for compliance with harmonised standards in primary legislation, i.e, Part H, but to continue to devolve such considerations to secondary “guidance” documents, for explication and implementation at local authority level.
This is a totally unsatisfactory situation which must be rectified. We have contacted public representatives and various professional bodies on this matter and many have advised us to bring the matter to the attention of the EU Commission, the ECJ and other responsible bodies such as the National Consumer Agency. I do not know what impact, if any, your National Consumer Agency report may have on the Department and its attitude to Building Regulations or its obligations under the Construction Products Directive, but I suspect, very little. As this is very much a consumer issue we would expect your representative on BRAB to have some considerable input at that body. We have been advised, by a Department official among others, that forward movement in Building, Consumer, Environmental or any other area will only be achieved if enforced by the EU, and we are in communication with the EU Commission to this end.
I am enclosing, for your further information, copies of some correspondence relative to the subject.
If you wish to pursue your consumer protection mandate at EU level, we would be happy to assist in any way we can. If you feel that this consumer issue is not within your remit to rectify perhaps you could advise us as to where we could bring the matter either at National or EU level.
In any case, we would be anxious to discuss matters of mutual interest or concern.
Yours truly,
Frank Cavanagh
Managing Director, BioCycle Ltd.