Council didn't know who was responsible for mica checks

A government minister and senior council officials didn’t know who was responsible for quality checks on construction materials at the centre of the mica crisis – an issue on which the European Commission has begun legal proceedings against Ireland.

A senior engineer for Donegal County Council – the body responsible for carrying out checks and ensuring materials complied with EU regulations – in response to a query said to a colleague, “I seem to remember you saying in the past that the council had some role,” before putting together a one-pager of what work the authority had supposedly carried out.

The commission this week announced it’s started legal proceedings against Ireland “for not carrying out market surveillance” on certain construction projects – noting, “Due to defective construction products, several thousand houses in Ireland suffered very serious damage.”

The Ditch this month published attorney general Paul Gallagher’s private legal advice to government on the state mica scheme, in which he warned, “It is also important that no concession is made that the state has any liability.”

Gallagher told housing minister Darragh O’Brien, “There might be a potential liability if some relevant EU regulation had not been transposed in time,” but said, “I am not aware of any such regulations.” Now the EU has stepped in.

It has now emerged that in the middle of the mica crisis, Fianna Fáil minister Charlie McConolague didn’t know what Donegal County Council’s job was, asking what its “role and responsibility is around the issue of the quarry materials and checks being carried out”.

The Department of Housing has previously confirmed that local authorities are responsible for compliance with this EU regulation. Previously unpublished correspondence shows neither Donegal County Council nor a cabinet minister were sure.

One council official claimed, after first asking what the council's role was, that the authority fulfilled its duties by sending 41 letters and conducting some inspections.

‘My understanding is that the council's role is…’

On 19 May, 2021 – a year after government’s first mica scheme had been introduced and and half a year before its most recent, adapted scheme was launched – Donegal County Council chief executive John McLaughlin wrote to council colleagues.

He’d been in contact with agriculture minister and Donegal TD Charlie McConalogue. Both McLaughlin and McConalogue were unsure about Donegal County Council’s responsibilities regarding the quarry materials in the mica crisis.

The council was responsible, under an EU regulation, for carrying out quality checks on construction materials. The European Commission this week began legal proceedings against the Irish state for failing to carry out “market surveillance” on these materials.

“Minister McConalogue is meeting on mica this evening. He asked what our role and responsibility is around the issue of the quarry materials and checks being carried out,” wrote McLaughlin.

McLaughlin said two of the council’s engineers – Brendan O'Donnell and Garrett Doherty – were going to put something together on what work the council had done on these materials.

“Brendan is going to chat to Garrett on the work he did on road making materials and get a one page note done. From a planning/building control perspective, can you have someone in planning compile a short note on our role and responsibility,” he wrote.

Senior council engineer Brendan O’Donnell said he remembered his colleague, Garrett Doherty, telling him about these responsibilities.

“I seem to remember you saying in the past that the council had some role under the construction products directive and that Tom Casey was looking for us to employ consultants for this. Would you give me a call to discuss,” he wrote.

O’Donnell went on to share with his chief executive a presentation from Doherty, saying “It will take about five mins to go through the powerpoint and is worth doing so.”

Attached along with the presentation were some notes from Doherty, which set out some of the council’s duties under the EU regulations Ireland is now accused of failing to follow.

Later on in the day O’Donnell sent another mail. From first saying he seemed to remember mention of the EU regulation, he now outlined what he said was his “understanding” of the council’s responsibilities. It “appears”, said O’Donnell, the council fulfilled them.

“My understanding is that the council's role is to ensure the appropriate certification is in place,” adding, “It appears that this has been done.”

According to O’Donnell the council sent 41 letters and conducted some inspections to fulfil its obligations.

“Following the introduction” of the relevant EU regulation “in 2013, the building control office issued a letter to concrete and steel product manufacturers in Donegal, outlining their obligations under the regulations. In total 41 such letters were issued. The council did carry out inspections, as market surveillance authority, on foot of complaints received in respect of a number of products and manufacturers for products such as waste water treatment plants and concrete lintels,” he wrote.

The European Commission has suggested it doesn’t agree with this assessment.

‘I am not aware of any such regulations’

The European Commission this week began legal proceedings against Ireland for its failures to comply with EU regulations on construction materials, saying “According to the commission's findings, the Irish authorities limited their monitoring activities to finished buildings or finalised civil engineering projects.”

According to the commission Ireland failed to comply with EU regulation 305/2011, which concerns the quality of construction materials. The Department of Housing has previously confirmed that county councils are responsible for this regulation.

“Under the European Union (Construction Products) Regulations 2013 (S.I. No.225 of 2013), each of the building control authorities (local authorities) have been designated as the principal market surveillance authorities for construction products that fall within the scope of the Construction Products Regulation (EU) No. 305/2011) (“the CPR”), within their administrative areas,” said a spokesperson.

When then attorney general Paul Gallagher advised government in September 2021, months before it introduced its revised mica scheme, he stressed the state shouldn’t concede any liability.

“It is also important that no concession is made that the state has any liability in this regard. As your officials pointed out it is important to avoid use of terms like "compensation" or "redress”. The state is making a voluntary payment on the basis of no liability with the intent of assisting people in difficulty. I have seen no document or evidence that would suggest liability on the part of the state,” he wrote.

Gallagher however admitted the state could be liable had it not followed EU regulations.

“There might be a potential liability if some relevant EU regulation had not been transposed in time and failure in transposition meant the appropriate building standards were not applied or had the consequence that claims could not be made that would have been otherwise brought on the basis of those regulations against potential wrongdoers.

Gallagher said he didn’t know about any EU regulations the state may not have followed.

“I am not aware of any such regulations but your department would be in the best position to confirm the position in relation to that,” he wrote.

The Department of Housing, Charlie McConalogue and Donegal County Council all declined to comment.