This post is part of the Environment and Planning Act blog series. In the run-up to the Environment and Planning Act (the Act) that will enter into force on 1 January 2024, we each time highlight a specific topic of the Act in this blog series.
The technical quality of structures is currently insufficiently assured
All structures must comply with the building regulations of the Bouwbesluit 2012 (Buildings Decree 2012). The current supervision system is as follows: a person who wishes to build applies for an environmental permit, the competent authority (usually the Municipal Executive) grants the permit if a preventive test shows that it is plausible that the building plan complies with the building regulations, the permit holder gives an order to a contractor to build the licensed structure, the competent authority supervises during construction and takes enforcement actions in the event of deviation from the permit. This greatly simplified representation illustrates the clear division of tasks and roles of the parties involved in construction and suggests that every licensed structure actually complies with the building regulations on completion. However, practice shows that this is certainly not always the case: structures are not always built in accordance with the permit issued and the competent authority lacks the capacity to monitor closely during construction. The technical quality of structures is thus inadequately assured, with all the consequences and risks that entails, including disputes between the competent authority and the permit holder, disputes between private parties, and accidents and near-misses with sagging balconies and collapsing parking garages as a result of inferior load-bearing structures. Sufficient reason for the legislature to reassess the current system of quality assurance for construction.
Act: from Buildings Decree 2012 to Building Environment Decree
The technical standards for construction activities regarding safety and health, among other things, currently set by the Building Decree 2012, will not change substantially when the Act enters into force, but will be transferred to the Besluit bouwwerken leefomgeving (Building Environment Decree; the Bbl). Re-evaluation of the quality assurance system focuses on the question of how, with due observance of the current building regulations, a better building quality can be achieved when a (new or renovated) structure is completed. Private parties involved in the construction play an important role in this regard.
New system to be phased in as from 1 January 2024
The idea of creating a new system with (more) privatised quality assurance has a long history going back more than two decades. The legal framework establishing the new system consists of the Wet kwaliteitsborging voor het bouwen (Quality Assurance (Building Sector) Act; the Wkb), the Besluit kwaliteitsborging voor het bouwen (Quality Assurance (Building Sector) Decree; the Bkb), and the Regeling kwaliteitsborging (Quality Assurance Regulations – Rkb). Because of the relation with the Act, and partly due to the digital infrastructure for both laws (Digitaal Stelsel Omgevingswet; DSO), the new system is incorporated in the Act and the underlying legislation: the Bbl and the Besluit kwaliteit leefomgeving (Living Environment Quality Decree; the Bkl).
As described in earlier blog posts, the regulation establishing an Accreditation Organisation (Toelatingsorganisatie) partially entered into force on 22 April 2022 already. This is a new authority that will oversee the accreditation of private quality inspectors (the kwaliteitsborgers) as we described in an earlier blog.
Bottlenecks of current quality assurance system
As stated above, the current quality assurance system for structures offers insufficient assurance that completed structures meet the prescribed technical standards. According to the legislature, this is due to a number of interrelated bottlenecks. These include the increased complexity of structures and the fact that the division of responsibilities between the parties involved in the construction process is not always clear. There is also a lack of positive incentives for building parties to actually deliver sound building quality. At the same time, there is a great deal of emphasis on the preventive review of building plans (on paper) by the competent authority, rather than on the quality of the physical end result: the building actually realised.
To promote sound building quality, the legislature envisages a balanced and mixed system of public and private responsibilities in the Wkb that, more than is currently the case, contains guarantees that the intended building quality of structures is actually achieved and in which the position of private and commercial building consumers improves.
Main features of the new quality assurance system
To deal with the bottlenecks identified, the new system based on the Wkb proposes a different division of responsibilities: primarily the market parties involved in the construction process themselves are responsible for quality assurance in construction. It is up to the government to set and, where necessary, adjust the relevant frameworks.
In the new quality assurance system, the emphasis of the assessment of the building quality shifts from permission to build (Is the building plan correct on paper? – to be determined on the basis of a preventive structural test carried out by the competent authority) to the permission to use the completed building (only after it has been demonstrated that the completed building complies with the structural requirements to be set; see Article 2.21(1) of the Bbl).
The most substantial change in relation to the current quality assurance system is that part of the current (municipal) construction supervision will be privatised by placing it in the hands of private quality assurance companies. In an earlier blog we wrote in more detail about the division of tasks and roles of the parties involved under the new system. Briefly summarised, the division of roles is as follows: the private party planning to build a structure hires an independent quality assurance officer who reviews before, during and on completion of the construction work whether the structure meets the technical standards of the Bbl. This will initially apply only to structures in consequence class 1 (as referred to in Article 2.17(3) of the Bbl; see also below). The quality assurance officer uses a quality assurance instrument that describes how the officer reviews whether a structure meets the technical standards. Because application of the instrument provides the presumption of proof that the building to be constructed will comply with the technical standards, the need (and the authority) for the competent authority to preventively carry out a substantive structural test of the ‘paper building plan’ is removed. From 1 January 2024, for new structures in consequence class 1 (see below), the role of the competent authority will therefore be limited to the assessment of the notice of construction and the notice of completion, and to the possible exercising of supervisory and enforcement powers. For the renovation of structures in this consequence class, this will apply as of 1 January 2025; until that date, municipalities will continue to preventively assess permit-requiring renovation activities against the applicable building requirements.
The construction process for consequence class 1 construction in the Act and the Bbl: from notice of construction to notice of completion
Buildings are divided into so-called 'consequence classes'. The greater the consequences if something goes wrong with the construction, the higher the consequence class:
Consequence class 1 (low risk): for example, homes and simple business premises. This class presents a risk of limited personal consequences if building regulations are not met.
Consequence class 2 (medium risk): for example, libraries, schools, town halls and other buildings up to 70 meters in height. This class presents a real risk of personal consequences if building regulations are not met.
Consequence class 3 (high risk): for example, subway stations, football stadiums, hospitals and buildings higher than 70 meters. This class presents a risk of significant personal consequences if building regulations are not met.
When the Act comes into force, new structures in consequence class 1 will fall under the quality assurance system as from 1 January 2024, and renovations of structures in this consequence class, according to the debate with the minister in the Senate on 24 October 2023, as from 1 January 2025 (provided that it becomes clear in due course, based on independent assessment, that sufficient quality assurance officers are available and taking into account the outcome of an 'implementation test' to be carried out in the first half of 2024). The legislature intends (and the Act makes it possible) eventually to have the new system also apply to structures in consequence classes 2 and 3 (see our earlier blog post on this subject for more details).
To answer the question whether a construction activity in a certain consequence class requires a permit, it is important to know that the Act introduces a bouwknip: a split between the spatial and technical part of the structure to be built: the ‘environmental plan activity’ (Article 5.1(1)(a) of the Act) and the (technical) ‘construction activity’ (Article 5.1(2)(a) of the Act), respectively. In principle, a (technical) construction activity – not to be confused with the term bouwactiviteit (construction activity) in Annex A to the Act – is permit-exempt, unless the activity is designated as requiring a permit in Article 2.25-2.27 of the Bbl. If an activity is permit-exempt, a structure must (nevertheless) comply with the technical standards of Chapters 4 and 5 of the Bbl, but no preventive substantive assessment takes place. If an activity requires a building permit, the latter is the case.
It follows from Article 2.27(1), opening lines and (a), of the Bbl that a building in consequence class 1 is permit-exempt. However, both new developments and renovations (full or partial renewal, alteration or extension) of such a structure fall under the scope of the new privatised quality assurance system as of 1 January 2024 and 1 July 2024, respectively (Article 2.18(1) of the Bbl). Although technically permit-exempt, this category of buildings is subject to a notice system: no later than four weeks before the start of the construction work, the principal must submit a (complete) notice of construction to the competent authority that meets the requirements set by Article 2.19 of the Bbl. An incomplete notice does not qualify as a notice of construction within the meaning of Article 2.19 of the Bbl. The notice of construction must state, among other things, which quality assurance officer will be engaged and which quality assurance instrument will be used (Article 2.19(1)(f) of the Bbl). A risk assessment and assurance plan must also be enclosed (Article 2.19(1)(h) and (i) of the Bbl, respectively). In the risk assessment, the quality assurance officer describes the risks (including specific, relevant local circumstances, such as the bearing capacity of the subsoil on site) of the building to be constructed not complying with the building regulations; in the assurance plan, the officer describes how to deal with those risks in such a way that the building can still comply with the technical standards (Article 3.80 of the Bkl). Construction drawings and calculations are not part of the notice of construction (as stated above, structures in consequence class 1 are not subjected to a preventive substantive structural test) and do not need to be supplied. If no response to the notice of construction is received from the competent authority, a principal may start construction four weeks after submitting the notice.
During construction, the quality assurance officer checks for compliance with the technical standards. The officer has a duty to warn: as soon as the quality assurance officer detects that the building does not comply with the standards, he must in the first instance warn the contractor and the principal. If his instructions are not followed and the problem persists, he must also "inform the competent authority without delay" (Article 3.86(1) of the Bkl), so that the competent authority is in a position to respond adequately with enforcement action if necessary.
On completion of the construction work, it is up to the quality assurance officer, as part of the notice of completion (referred to in Article 2.21(1) of the Bbl), to declare to the competent authority that the completed building complies with the technical standards of Chapters 4 and 5 of the Bbl (Article 2.21(2)(d) of the Bbl in conjunction with Article 3.86(2)(c) of the Bkl). The quality assurance officer may not issue this declaration if and as long as the building does not (or does not yet) satisfy the requirements of Chapters 4 and 5 of the Bbl, which prevents the building from being put to use (Article 2.19(1) of the Bbl). The entire notice of completion then constitutes what is known as the dossier bevoegd gezag (competent authority file) and, unlike the notice of construction before the start of the construction work, does contain all kinds of technical information in the form of calculations and drawings (Article 2.21(2)(e) to (h) of the Bbl).
This post is part of the Environment and Planning Act blog series. An overview of all the blogs in this blog series can be found here.
Further information on the background and adoption of the Environment and Planning Act can be found on our webpage www.my.stibbe.com/mystibbe/pgo. Our webpage includes the consolidated version of the Environment and Planning Act, whereby all the articles of the law are provided with a relevant explanation based on the legislative history.