Can a development owner opt out retrospectively of statutory certification?
As a general principle, people are obliged to comply with the law as it applies at a particular moment in time and changes to law are not retrospective. Retrospectively changing the rules once a project is underway is disruptive.
SI 365 (2015) permits an opt out of statutory certification requirement– in respect of works/buildings for which a commencement notice is lodged on/after September 1st, 2015.
The Building Control Regulations don’t permit an opt out of statutory certification in respect of works/buildings for a which a commencement notice was lodged prior to September 1st, 2015.
If an owner who submitted a Commencement Notice prior to September 1st, 2015 fails to comply with Building Control Regulations requirements, they may be guilty of an offence. They will also be responsible for the consequences of their decision to operate outside of the law (e.g. breach of contract with assigned certifier, or changing insurance cover circumstances – if applicable).
Therefore, it’s important to seek professional advice regarding obligations and not risk being held liable for the consequences of such decisions.