It’s delusional to think that Longboat Quay and Priory Hall are in any way unique. The chances are that Ireland is full of such developments, constructed by slipshod, incompetent and often dishonest, builders. We’ll see many more of these disasters and each time there will be calls for the government (in other words, the taxpayer) to cover the cost of repairs, even though neither the government nor the local authorities had anything to do with building these things.
If you listened to our national broadcaster, you might think that the local councils are responsible for fixing the problems because they certified the buildings as fire-safe, but you’d be wrong. Local authorities do not certify buildings. They have never certified buildings. They don’t sign off on newly-constructed developments.
What about the fire safety certificates? you might say. Didn’t the council give them a certificate?
They did indeed, but for what?
Well, if you were one of our cutting-edge high-profile national journalists, you’d be telling the nation that they issued certificates for the buildings, and you’d be quite wrong. They did not.
A fire safety certificate is a document based on the plans and specifications for a proposed new building. All it does is confirm that the development will comply with the building regulations provided it’s constructed strictly as set out in the plans, calculations and specifications submitted.
That’s all. Under the law, that’s what a fire safety certificate is. An approval for a design. Nothing more.
All right, you might say. In that case, where were the council inspectors? Why did they miss these problems? Brown envelopes maybe?
Well actually, the truth is more prosaic.
The truth is that successive governments made a very deliberate decision to keep the number of inspectors to an absolute minimum, for several reasons. Professionally-qualified staff are expensive and what’s more, they disrupt the smooth running of a builder’s empire when they find faults. On top of that, the public have for years been fed the false narrative of the bloated public service, resulting in Ireland having one of the most undermanned public sectors in Europe.
Here’s a fact worth repeating: Belfast has more building inspectors than the entire republic. As somebody pointed out on radio, we have more dog wardens than building inspectors.
When a builder sells you a new apartment, they have an obligation to deliver a dwelling that complies with the building regulations in every respect, and if they don’t, you have a legitimate case against them under contract law, but of course, if the building company goes out of business, you’re stuck.
This is the situation with Longboat Quay, built by Bernard McNamara, who subsequently slid off to England, went through a one-year bankruptcy process and then returned to Dublin to start building again using a new limited company. Bernard is in the clear while you’re stuck with a dangerous apartment.
Dublin City Council have been painted as extremely hard-hearted for threatening the throw these unfortunate residents out on the side of the street with nowhere to go, and it’s true that the situation is utterly appalling, but let’s just examine the alternatives.
The council have been made aware of serious fire safety defects in the building, threatening the lives of as many as 900 people. What are they supposed to do with that information? Should the CEO or the chief fire officer take it on themselves personally to ignore that fact? If a catastrophic fire does occur, what should the chief fire officer tell the court when he’s being prosecuted for criminal negligence or even manslaughter?
What council manager in their right mind would volunteer to hang on a cross erected by a bad builder?
The local authority are stuck. They have no choice but to issue a fire safety notice specifying what needs to be done, and if that work is not carried out, under the law, the complex must close. That’s the law.
So what’s the answer?
Let’s take a step back.
New houses and apartments are bought and sold under civil law. A builder owes you a duty of care.
Somebody signed off on this building. It might not be the banks’ valuers on behalf of individual clients, but somebody periodically certified for the developer that the building complied with the regulations so that the banks could release funds to continue construction. Some professional person informed the banks that their money was safe. That means the banks might have failed to perform due diligence and therefore carry some share of responsibility. It also means that a surveyor failed to detect the construction flaws and presumably that surveyor has professional indemnity insurance covering such eventualities.
That’s all in the sphere of civil law but the building regulations, or more specifically, the Building Control Acts, are essentially criminal law. If you fail to comply with the regulations, you can be prosecuted.
Combine these two things. The local authority has the power to prosecute anyone involved in construction who fails to comply with the regulations. They can prosecute individuals, and it seems to me that if they decided to prosecute under indictment each and every person involved in the construction of Longboat Quay, from the former company owner to the lowliest foreman, regardless of what bankruptcies had been concluded we might see money magically materialising to settle the civil claims and pay for the repairs.
It wouldn’t surprise me in the slightest and it would strike me as a far better outcome than the taxpayers yet again having to bail out bad practice as they were forced to do for the investors in the failed banks.
It is a well-established principle in law that nobody is protected by the veil of incorporation.