Environment Act and Building Quality Assurance Act: the technical construction activity

This year we will inform you from different angles about the developments surrounding the new Environment Act. In the fourth part of this series, Robin already explained that the current assessment framework for the activity 'building' under the Environment Act will be split into the 'technical building activity' and the 'environmental plan activity'. Where in his blog the focus was mainly on the omgevingsplan activity, in this blog I put the focus more on the technical construction activity.

Regarding the expanded liability for contractors due to the new Building Quality Assurance Act, I refer you to a blog by my colleague Lieke.

The technical construction activity

Currently, the review of the technical aspects of a building plan takes place as part of the application for the activity of "building. This is because a building plan must comply with the Building Decree 2012, but also with the zoning plan, building standards and building regulations. This will change under the Environment Act with the simultaneous introduction of the Building Quality Assurance Act. As things stand at present, this introduction looks set to take place on July 1, 2022. Under the Environment Act, the technical building activity will be separated from current other assessment frameworks, which will end up together in the environmental plan and thus will apply as an "environmental plan activity. The technical building activity concerns the assessment against ensuring safety, protecting health and sustainability and usability (Art. 5.18 Environment Act), which can thus be compared to the current assessment against the Building Code 2012.

The consequence classes

The technical construction activity can be permit-exempt, reportable or require a permit. The possibility of a (technical) building activity requiring notification is new compared to the current system. Under which category ("consequence class") the technical building activity falls, depends largely on the size and construction of the building plan. Simple structures of limited size and with few users are usually permit-free for technical building activity. As the size and/or number of users of the structure increases, or the construction becomes more complex, a notification or permit requirement will apply. In the context of that notification or permit application, it is assessed whether the regulations relevant to those activities are complied with, such as the Building Works Decree for the Environment ('replacement' of the Building Decree 2012).

This shift is intended to proceed in stages. For now, the quality assurance regime will only apply to structurally less complex structures such as single-family homes and offices, collectively referred to as "consequence class 1. Eventually (when is not yet clear) the new regime will also apply to more complex structures such as libraries, town halls and educational buildings (consequence class 2) and eventually also to very complex structures such as subway stations, soccer stadiums and hospitals(consequence class 3).

Review of the technical construction activity is no longer done by the college, but by "private quality assurance companies. The college only assesses whether the technical assessment by the quality assurance company has been carried out in accordance with the regulations.
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What will this system look like in practice?

The way this system of private quality assurance should look is still under development. In the following, we start from the version of the Draft Decree on Quality Assurance for Construction as sent by the Minister to the Senate on February 22, 2021 .

Under the new regime, for both technical construction activities requiring notification and those requiring a permit, a notification must be made four weeks prior to the start of construction (Art. 2.18 Bkl). Starting construction before these four weeks have elapsed is therefore contrary to the Bkl. The notification must be made to the competent authority (usually the Municipal Executive). A few more steps precede making this notification.

Step 1 - The risk assessment

In the first place, the quality assurance contractor must make a risk assessment that highlights potential risks such as non-compliance with building regulations. The requirements that such a risk assessment must meet will not become clear until the first assessment instruments are approved.

Step 2 - The assurance plan

Based on the risk assessment, the quality assurance contractor prepares an assurance plan. This must describe the measures to prevent or mitigate the identified risks. This assurance plan must be submitted as part of the notification. The exact requirements that such an assurance plan must meet are still unknown.

Step 3 - The 'start of construction' notification / role of competent authority

Unlike now, where a permit application must be assessed by the competent authority, the competent authority will soon only have to assess whether the notification is complete and all submission requirements have been met. Under the new system, it is not the intention that the competent authority will assess the content of this notification or give an opinion on this assurance plan. That substantive assessment will have to be done by private quality assurance companies themselves. To ensure the independence of this assessment there is a ban on quality assurance companies being involved in a project in any other capacity (e.g. organizationally, financially or legally) than as a quality assurance company. The competent authority will have to check whether the chosen (assessment) instrument is permitted for the consequence class of the structure in question and whether the quality assurance officer has the correct certificates. A notification only counts as a notification if the notification is complete,[1] which means that if all other permissions have been arranged, the shovel can be put in the ground four weeks after a complete notification has been made.

Step 4 - Notice of completion of construction work.

When the construction is completed, a 'construction completion report' must be submitted to the competent authority. This notification must also include a statement of approval from the quality assurance agency. Two weeks after filing a complete notification, the building may be put into use. After this notification of completion the quality assurance officer disappears from the picture and the competent authority is again responsible for supervision and enforcement of the building regulations.

Assessment tools

Unlike now, in replacement of a method of construction supervision chosen by the municipality, the client himself can choose an instrument by which he will guarantee the quality of the future structure. The different types of instruments to choose from depend on the structure and the consequence class to which this structure falls.

With regard to the type of instrument, one can think of assessment guidelines or certified working methods recognized by an authorization organization yet to be established (Art. 2.15, fourth paragraph, Bbl). The idea is that these approved instruments will be included in a public register. Only approved "instrument providers" can submit instruments to the permittee for approval. This admission committee will be paid for by these 'instrument providers'[2]. 

Cost?

In current practice, fees are charged for assessing an application for an environmental permit. Because an application no longer needs to be submitted for many technical building activities, this also means that the fee obligation will disappear to that extent. However, the quality assurance agency will charge costs for the technical assessment of the building plan.

The competent authority should not make money from fees and should set fees (often a percentage of the construction costs) in such a way that they do not more than cover the costs of processing all applications for which fees can be charged. Therefore, probably the elimination of the technical building test by the competent authority means that many municipalities' fees rates would have to be adjusted downward. After all, the costs for municipalities will also decrease with this system. However, the question is whether these savings for a small builder will outweigh the costs for a quality assurance agency. What is more, there are already concerns that the costs that quality assurance agencies will soon be able to charge may be so high that it will bring (especially small) building projects to a standstill.

Currently, there are no instrument providers or quality assurance providers yet. This is because, according to the Minister, the costs of developing the necessary instruments and the costs of certifying these quality assurance providers must also be recovered by the private sector itself.[3] In addition, it will soon be the case that quality assurance providers will be needed for many construction activities, while only a few quality assurance providers have been certified immediately. This will lead to a very high workload for the first quality assurance personnel, which will probably have a strong upward effect on prices. Especially because without a quality assurance officer no notification can be made and without such a notification construction cannot be started. Because municipalities are no longer allowed to perform this test themselves, many small construction projects will come to a standstill if no quality assurance agencies are available (or too expensive). If the law as it stands is passed, quality assurance agencies will obtain a kind of monopoly position without their fees being legally regulated to keep the market accessible. It remains to be seen whether the legislature will even consider these possible consequences.

[1] The requirements a notification must meet are listed in Art. 2.19 Bbl

[2] Given that Section 1.58 of the 2012 Building Code has not yet entered into force.

[3] Parliamentary Papers II 2020/21, 32 757, no. 174, p. 16.