, the Board may proceed as if the complaint had not been withdrawn if it is satisfied that there is good and sufficient reason for so doing.
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(5)Where the Board proceeds under subsection (4) as if a complaint had not been withdrawn, the Board shall inform the complainant and the investigation concerned shall thereupon be treated as an investigation initiated by the Board of its own volition, and the other provisions of this Act shall be construed accordingly.
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(6)In this section, “investigation report”, in relation to an investigation, means a report in writing prepared, following the completion of the investigation, by the inspector appointed under subsection (1)(b) to carry out the investigation— (a) stating that the inspector is, as appropriate— (i) satisfied that improper conduct by the registered person the subject of the investigation has occurred or is occurring, or (ii) not so satisfied, (b) if paragraph (a)(i) is applicable, stating the grounds on which the inspector is so satisfied, and (c) if paragraph (a)(ii) is applicable, stating— (i) the grounds on which the inspector is not so satisfied, and (ii) the inspector’s opinion, in view of such grounds, on whether or not a further investigation of the registered person is warranted and, if warranted, the inspector’s opinion on the principal matters to which the further investigation should relate.
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Notice of investigation 46. (1) Where the Board has appointed an inspector to carry out an investigation, the inspector shall, as soon as practicable after being so appointed— (a) if the investigation arises in consequence of the receipt by the Registrar of a complaint, give notice to the registered person to whom the complaint relates of the receipt of the complaint and setting out particulars of the complaint, (b) if the investigation is carried out at the volition of the Board, give notice to the registered person concerned of the matters to which the investigation relates, and (c) in the case of an investigation referred to in paragraph (a) or (b) — (i) give the registered person— (I) copies of any documents relevant to the investigation, and (II) copies of this Part and
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Part 7
\n
, and (ii) without prejudice to the generality of section 47 , afford to the registered person an opportunity to respond within 30 days beginning on the date on which the registered person received the notice referred to in paragraph (a) or (b), or such further period not exceeding 30 days as the inspector allows, to the complaint.
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(2)Where an investigation arises in consequence of the receipt by the Registrar of a complaint, the inspector appointed to carry out the investigation shall— (a) as soon as practicable, give the complainant a copy of the notice referred to in subsection (1)(a), and (b) make reasonable efforts to keep the complainant informed of the progress of the investigation.
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Powers of inspectors 47. (1) For the purposes of an investigation, an inspector may— (a) subject to subsections (13) and (14), at all reasonable times enter, inspect, examine and search any premises at, or vehicles in or by means of, which any activity in connection with the provision of works by the registered person, or in connection with the organisation or assistance of persons engaged in the provision by that registered person, is carried on, (b) subject to subsections (13) and (14), enter, inspect, examine and search any dwelling occupied by the registered person or where the registered person is a body corporate that is a company, by a director, manager, secretary or other officer of the body, or where the registered person is a body corporate other than a company, by each member of the company performing functions in relation to management of the body or by an employee of a registered person who carries on an activity referred to in paragraph (a), being a dwelling as respects which there are reasonable grounds to believe records relating to the carrying on of that activity are being kept in it, (c) without prejudice to any other power conferred by this subsection, require any person found in or on any premises, vehicle or dwelling referred to in any of the preceding paragraphs or any person in charge of or in control of such premises, vehicle or dwelling or directing any activity therein or thereto referred to in paragraph (a) to produce any records, plans, reports, books or accounts (whether kept in manual form or otherwise) or other documents which it is necessary for the inspector to see for the purposes of the investigation (and the inspector may inspect, examine and copy any such records, plans, reports, books or accounts or other documents so produced or require a foregoing person to provide a copy of them or of any entries in them to the inspector), (d) require any person referred to in paragraph (c) to afford such facilities and assistance within the person’s control or responsibilities as are reasonably necessary to enable the inspector to exercise any of the powers conferred on the inspector under paragraph (a), (b) or (c), (e) require any person by or on whose behalf data equipment is or has been used in connection with an activity referred to in paragraph (a), or any person having charge of, or otherwise concerned with the operation of, such data equipment or any associated apparatus or material, to afford the inspector all reasonable assistance in respect of its use, and
\n
(f) be accompanied by a member of the Garda Síochána if there is reasonable cause to apprehend any serious obstruction in the performance of any of the inspector’s functions under this subsection.
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(2)A requirement under paragraph (c), (d) or (e) of subsection (1) shall specify a period within which, or a date and time on which, the person the subject of the requirement is to comply with it.
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(3)For the purposes of an investigation, an inspector— (a) may require a person who, in the inspector’s opinion— (i) possesses information that is relevant to the investigation, or (ii) has any records, plans, reports, books or accounts (whether kept in manual form or otherwise) or other documents within that person’s possession or control or within that person’s procurement that are relevant to the investigation, to provide that information or those records, plans, reports, books, accounts or other documents, as the case may be, to the inspector, and (b) where the inspector thinks fit, may require that person to attend before the inspector for the purpose of so providing that information or those records, plans, reports, books, accounts or other documents, as the case may be, and the person shall comply with the requirement.
\n
(4)A requirement under subsection (3) shall specify— (a) a period, not exceeding 30 days beginning on the date of the requirement, within which, or a date and time by which, the person the subject of the requirement is to comply with the requirement, and (b) as the inspector concerned thinks fit— (i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the records, plans, reports, books, accounts or other documents concerned, or (ii) the place to which the person shall send the information or the records, plans, reports, books, accounts or other documents concerned.
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(5)A person required to attend before an inspector under subsection (3)— (a) is also required to answer fully and truthfully any question put to the person by the inspector, and (b) if so required by the inspector, shall answer any such question under oath.
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(6)Where it appears to an inspector that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (5), the inspector may, on notice to that person and with the consent of the Board, apply in a summary manner to the Circuit Court for an order under subsection (7).
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(7)Where satisfied after hearing the application about the person’s failure to comply or fully comply with the requirement in question, the Circuit Court may, subject to subsection (10), make an order requiring that person to comply or fully comply, as the case may be, with the requirement within a period specified by the Court.
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(8)An application under subsection (6) to the Circuit Court shall be made to a judge of that Court for the circuit in which the person the subject of the application resides or ordinarily carries on any profession, business or occupation.
\n
(9)The administration of an oath referred to in subsection (5)(b) by an inspector is hereby authorised.
\n
(10)A person the subject of a requirement under subsection (1), (3) or (5) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.
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(11)Any statement or admission made by a person pursuant to a requirement under subsection (1), (3) or (5) is not admissible against that person in criminal proceedings other than criminal proceedings for an offence under subsection (15), and this shall be explained to the person in ordinary language by the inspector concerned.
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(12)Nothing in this section shall be taken to compel the production by any person of any records, plans, reports, books or accounts (whether kept in manual form or otherwise) or other documents which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege.
\n
(13)An inspector shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (14) authorising the entry.
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(14)A judge of the District Court, if satisfied on the sworn information of an inspector that— (a) (i) there are reasonable grounds for suspecting that any information is, or any records, plans, reports, books or accounts (whether kept in manual form or otherwise) or other documents required by an inspector under this section are, held on any premises or any part of any premises, and (ii) an inspector, in the performance of functions under subsection (1), has been prevented from entering the premises or any part thereof, or (b) it is necessary that the inspector enter a private dwelling and exercise therein any of his or her powers under this section, may issue a warrant authorising the inspector, accompanied if necessary by other persons, at any time or times within 30 days beginning on the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any such functions.
\n
(15)Subject to subsection (12), a person who— (a) withholds, destroys, conceals or refuses to provide any information or records, plans, reports, books or accounts (whether kept in manual form or otherwise) or other documents required for the purposes of an investigation, (b) fails or refuses to comply with any requirement of an inspector under this section, or (c) otherwise obstructs or hinders an inspector in the performance of functions imposed under this Act, shall be guilty of an offence.
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(16)In this section, “records, plans, reports, books or accounts” includes copies of reports, records, books or accounts.
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Actions to be taken by inspector on completion of investigation 48. (1) Subject to subsection (3), where an inspector has completed an investigation, and considered any information or documents provided to him or her pursuant to any requirement under section 47 , the inspector shall, as soon as practicable— (a) prepare a draft of the investigation report, and (b) give to the registered person to whom the investigation relates and, if the investigation arose in consequence of the receipt of a complaint, the complainant— (i) a copy of the draft of the investigation report, (ii) a copy of this section, and (iii) a notice in writing stating that the registered person and the complainant (if any) may, not later than 30 days beginning on the date on which the notice was respectively received by them, or such further period not exceeding 30 days as the inspector allows, each make submissions in writing to the inspector on the draft of the investigation report.
\n
(2)Subject to subsection (3), an inspector who has complied with subsection (1) shall, as soon as practicable after— (a) the expiration of the period referred to in subsection (1)(b)(iii), and (b) having— (i) considered the submissions (if any) referred to in subsection (1)(b)(iii) made before the expiration of that period on the draft of the investigation report concerned, and (ii) made any revisions to the draft of the investigation report which, in the opinion of the inspector, are warranted following such consideration, prepare the final form of the investigation report and submit it to the Board with any such submissions annexed to the report.
\n
(3)Where an inspector states, whether in a draft of the investigation report or in the final form of the investigation report, that he or she is satisfied that improper conduct by the registered person has occurred or is occurring, the inspector shall not make any recommendation, or express any opinion, in the report as to the sanction that he or she thinks ought to be imposed on the registered person in respect of such improper conduct in the event that the Board is also satisfied that improper conduct by the registered person has occurred or is occurring.
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Determination by Board 49. (1) On receipt of an investigation report submitted to it by an inspector under section 48
\n
(2), the Board shall consider the report and any submissions annexed to it.
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(2)Subject to subsection (3), where the Board has considered the investigation report and any submissions annexed to it, the Board— (a) if it is satisfied that improper conduct by the registered person to whom the investigation report relates has occurred or is occurring, shall, as it thinks fit in the circumstances of the case, subject to subsection (6) and section 54 — (i) impose a minor sanction on the registered person, or (ii) impose a major sanction on the registered person, (b) if it is not satisfied that improper conduct by the registered person to whom the investigation report relates has occurred or is occurring but is of the opinion that a further investigation of the registered person is warranted, shall cause the further investigation to be carried out pursuant to its powers under section 45(1), or (c) if it is not satisfied that improper conduct by the registered person to whom the investigation report relates has occurred or is occurring but is not of the opinion that a further investigation of the registered person is warranted, and the investigation arose from a complaint, shall dismiss the complaint and take no further action.
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(3)Where the Board has considered an investigation report and any submissions annexed to it submitted to the Board under section 48
\n
(2), it may if requested to do so by the registered person or, if it considers it proper to do so for the purposes of assisting it to make a decision under subsection (2), or for the purposes of observing fair procedures, for those purposes— (a) conduct an oral hearing, or (b) give to the registered person to whom the investigation concerned relates and, if the investigation arose in consequence of the receipt of a complaint, the complainant— (i) a copy of the investigation report, and (ii) a notice stating that the registered person and the complainant (if any) may, not later than 30 days beginning on the date on which the notice was respectively received by them, or such further period not exceeding 30 days as the Board allows, each make submissions in writing to the Board on the investigation report.
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(4)Subject to Schedule 1 the chairperson of the Board shall determine how an oral hearing under subsection (3)(a) is conducted.
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(5)The Board shall give notice by prepaid registered post to the registered person to whom the investigation relates of a decision under subsection (2) as soon as practicable after it is made, which shall— (a) include reasons for the decision, (b) where the decision is under subsection (2)(a), inform the registered person that— (i) the registered person may, under section 50 , appeal the decision within 30 days beginning on the date of the notice, and (ii) the appeal shall specify the grounds for the appeal, and (c) where the decision is under subsection (2)(a), inform the applicant that the decision shall be suspended until, as the case may be— (i) the decision becomes final in accordance with subsection (6), or (ii) subject to subsection (7) the disposal of the appeal under s ection 50 .
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(6)If, on the expiration of the period of 30 days beginning on the date of the notice under subsection (5), no appeal under section 50 has been made, the decision of the Board under subsection (2)(a) shall be final.
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(7)If, following an appeal of a decision under subsection (2)(a), the appeals committee direct the Board under section 50
\n
(7)(b) to reconsider the decision, that decision shall be suspended until it has been reconsidered by the Board.
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(8)In this section— “major sanctions” means— (a) the removal of the registered person from the register, (b) the suspension of the registered person’s entry in the register— (i) for a specified period, or (ii) until compliance by the registered person with a condition to which termination of the suspension is subject, (c) the removal of a registered person from a particular division, (d) any combination of any of the sanctions specified in paragraphs (a) to (c); “minor sanctions” means— (a) advice, (b) a reprimand, (c) a caution, or (d) any combination of any of the sanctions specified in paragraphs (a) to (c).
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Appeal to appeals committee 50. (1) Any person adversely affected by a decision of the Board under section 31
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(4), paragraph (b), (c) or (d) of section 35(3), section 37
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(3), paragraph (b), (c) or (d) of section 37
\n
(4), or section 49
\n
(2)(a) may appeal to the appeals committee against the decision not later than 30 days beginning on the date of the notice of that decision (in this section referred to as “the appellant”).
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(2)An appeal shall be in writing and specify the decision to which the appeal relates and the grounds on which the appeal rests.
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(3)An appeal may be based on either procedural or substantive matters.
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(4)An appellant may, at any time before the appeal is heard, withdraw the appeal in whole or in part by notifying the appeals committee in writing of the withdrawal.
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(5)A witness at a hearing conducted by the appeals committee has the same immunities and privileges as if he or she were a witness before the High Court.
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(6)The chairperson of the appeals committee may— (a) direct in writing an appellant to attend before the appeals committee on a date and at a time and place specified in the direction, (b) direct in writing any other person whose evidence the appeals committee may require to attend before the appeals committee on a date and at a time and place specified in the direction and to bring any document in the person’s possession relating to the appeal, (c) request in writing the Board to produce any documents in its possession relating to the appeal together with its observations on the appeal, and (d) give any other direction in writing for the purpose of the proceedings that appears to the chairperson to be fair and reasonable.
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(7)On the hearing of an appeal under this section, the appeals committee may— (a) confirm the decision of the Board, subject to any amendment thereof as the appeals committee thinks fit, (b) remit, for stated reasons and with or without directions, the matter to the Board for reconsideration and the making of a new decision (which new decision may, in the case of a decision of the Board referred to in section 49
\n
(2)(a), be a decision under section 49
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(2)(a)(ii) to impose a major sanction), or (c) substitute its determination for the decision of the Board (which may, in the case of a decision of the Board referred to in section 49
\n
(2)(a), be a decision under section 49
\n
(2)(a)(ii) to impose a major sanction).
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(8)Where the appeals committee determines under subsection (7)(c) to impose a major sanction under section 49
\n
(2)(a)(ii), sections 51 to 53 shall, with all necessary modifications, apply to the determination as if it were a decision of the Board to impose a major sanction on the registered person concerned.
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(9)The chairperson of the appeals committee shall give notice to— (a) the appellant, by prepaid registered post, of the decision taken on the appeal, the date on which it was made and the reasons for it, and shall inform the appellant that the appellant may, under section 52 , appeal the decision to the High Court, (b) the Board of the decision taken on the appeal, the date on which it was made and the reasons for it.
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Confirmation of High Court required before decision to impose major sanction takes effect 51. A decision of the Board under section 49
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(2)(a) or the appeals committee under section 50 to impose or confirm a decision to impose a major sanction shall not take effect unless the decision is confirmed by the High Court under section 52 or 53, as the case may be.
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Appeal to High Court 52. (1) Any person the subject of a decision under section 50 may, not later than 30 days beginning on the date the registered person receives notice of that decision, appeal to the Court against the decision.
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(2)The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, issue directions in respect of the conduct of the appeal.
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(3)The Court shall dismiss an appeal if it is of the opinion that the appeal is vexatious, frivolous, an abuse of process or without substance or foundation.
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(4)The Court may, on the hearing of an appeal under subsection (1), consider— (a) whether the appeals committee in making its decision committed a serious or significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious or significant error, (b) whether the appeals committee complied with fair procedures in making its decision, and (c) whether the sanction upheld or imposed by the appeals committee was appropriate and proportionate.
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(5)In considering an appeal, the Court— (a) shall have regard to the record of the decision the subject of the appeal, and (b) may, where it considers it necessary or expedient for the fair and proper determination of the appeal, have regard to any submissions, documents or evidence adduced by a party to an appeal whether or not already adduced or contained in the record of the decision as the Court considers appropriate.
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(6)The Court may, on the hearing of an appeal under subsection (1)— (a) confirm the decision the subject of the appeal, or (b) where it is satisfied by reference to the grounds of appeal that a serious or significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious or significant error, was made in making the decision the subject of the appeal or that the decision was made without complying with fair procedures— (i) annul the decision and substitute such other decision as the Court considers appropriate, or (ii) remit the matter to the appeals committee for reconsideration and the making of a new decision, with or without directions as the Court considers appropriate including whether the matter should be reconsidered by another constitution of the appeals committee.
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(7)A registered person shall, when making an appeal under this section, comply with the requirements of this section and any applicable rules of court made thereunder and where a registered person does not so comply, the appeal shall be invalid and shall not be considered.
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(8)In this section “Court” means the High Court.
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Application to High Court to confirm decision to impose major sanction 53. (1) Where a registered person does not appeal against a decision to impose a major sanction on that person to the appeals committee within the period specified under section 50
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(1)or to the Court within the period allowed under section 52 , as the case may be, the registration body shall, as soon as practicable after the expiration of the relevant period, by motion on notice to the registered person make an application in a summary manner to the Court for confirmation of a decision to impose a major sanction.
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(2)The Court may, on the hearing of an application under subsection (1)— (a) confirm the decision the subject of the application, or (b) where it is satisfied on the basis of the evidence before the Board or appeals committee that there is a manifest and fundamental error of law that undermines the basis for the decision— (i) annul the decision and substitute such other decision as the Court considers appropriate, or (ii) remit the matter to the Board or, as the case may be, the appeals committee for reconsideration and the making of a new decision, with or without directions as the Court considers appropriate.
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(3)The registration body shall, prior to making an application under subsection (1), by notice to the person concerned, seek the consent in writing of that person to the imposition of the major sanction referred to in subsection (1).
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(4)Where the person concerned consents to the imposition of the major sanction concerned in accordance with a notice under subsection (3), an application by the registration body under subsection (1) may be made ex parte.
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(5)Where the person concerned consents to the imposition of the major sanction concerned in accordance with subsection (3), the sanction shall take effect when the decision of the registration body has been confirmed by the Court in accordance with this section.
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(6)Subject to subsection (2), where the application relates to a decision to remove or suspend a registered person from the register or from a particular division, the Court may either (as the Court may consider proper) direct the Board to remove the name of such person from the register concerned or direct that during a specified period (which shall not commence until the elapse of 7 days beginning on the date of the decision of the Court) or until such person complies with a condition to which termination of the suspension is subject, the inclusion of the registered person’s name and details in the register shall be suspended.
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(7)If the Court confirms the decision under subsection (2)(a) or substitutes the decision under subsection (2)(b)(i), the decision of the Court shall be substituted for the decision the subject of the application.
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(8)A registered person to whom a decision to impose a major sanction under section 49
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(2)(a) or section 50 relates may within 30 days of receiving the notice referred to in subsection (1) inform the registration body in writing that it does not intend to appear, and does not intend to make submissions, at the hearing of any application under subsection (1).
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(9)The Registrar shall, as soon as practicable, give notice to the registered person the subject of a decision under this section by prepaid registered post of the decision of the Court, the date on which it was made and the date from which such decision will take effect as regards the registered person’s entry in the register.
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(10)In this section, “Court” means the High Court.
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Matters to be considered in determining sanction to be imposed 54. The Board, the appeals committee or the High Court, as appropriate, in considering the sanction (if any) to be imposed— (a) on a registered person under section 49
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(2)(a), or (b) on a registered person pursuant to a decision confirmed or given under section 50 , 52 or 53 , shall take into account the circumstances of the improper conduct concerned (including the factors occasioning it) and, without prejudice to the generality of the foregoing, may have regard to— (i) the need to ensure that any sanction imposed— (I) is appropriate and proportionate to the improper conduct, and (II) if applicable, will act as a sufficient incentive to ensure that any like improper conduct will not occur in the future, (ii) the seriousness of the improper conduct, (iii) the extent of any failure by the registered person to co-operate with the investigation concerned of the registered person, (iv) any excuse or explanation by the registered person for the improper conduct or failure to co-operate with the investigation concerned, (v) the duration of the improper conduct, (vi) the repeated occurrence of improper conduct by the registered person, (vii) if applicable, the continuation of the improper conduct after the registered person was notified of the investigation concerned, (viii) if applicable, the extent and timeliness of any steps taken to end the improper conduct and any steps taken for remedying the consequences of the improper conduct, (ix) whether a sanction in respect of like improper conduct has already been imposed on the registered person by a court, the Board or another person, and (x) any precedents set by a court, the Board or another person in respect of a previous improper conduct.
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PART 7
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Miscellaneous Additional jurisdiction of appeals committee 55. (1) If the Board fails to make a decision referred to in section 35
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(1)or 37
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(2)within the 90 day period specified therein, a person adversely affected by such failure may make a complaint to the appeals committee that such a failure has occurred.
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(2)On the hearing of such a complaint and having given the Board an opportunity to be heard, the appeals committee may, as it thinks appropriate— (a) give a direction to the Board to make the decision concerned as soon as practicable, or (b) make a decision on the application concerned (and where the appeals committee does so, section 52 shall apply to such a decision as it applies to any other decision of the appeals committee).
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Proceedings privileged 56. The following shall be absolutely privileged: (a) complaints made to the Board under
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Part 6
\n
and documents created or furnished to the parties entitled to receive them under
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Part 6
\n
; (b) proceedings, documents and communications associated with an investigation by an inspector, the Board or the appeals committee under
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Part 6
\n
; (c) a report of an inspector, the Board or the appeals committee in the exercise or performance of powers, duties or functions under
\n
Part 6
\n
.
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Restoration to register and termination of suspension 57. (1) A provider of building works whose entry has been removed from the register may apply to the Board to have their entry in the register restored and section 34 shall apply to any such application as it applies to an application under that section subject to any necessary modifications and save where provided for in subsection (2).
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(2)An entry in the register that has been removed may be restored at the direction of the Board, but not otherwise, and the Board may attach such conditions as it sees fit to the restoration, including payment of a fee not exceeding the fee specified under section 34
\n
(2)(g).
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(3)Where the registration of a provider of building works has been suspended, the Board shall, subject to subsection (4), terminate the suspension.
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(4)A person whose registration has been suspended— (a) may apply to the Board, upon expiry of the specified period or on compliance by the person with the condition to which the termination is subject, to terminate the suspension, and (b) for that purpose shall— (i) provide information in a form specified by the Board to satisfy the Board that, subject to section 38 , the information provided by the person under section 34 or 36 , as the case may be, on the application for the registration concerned, remains accurate, and (ii) pay a fee as may be specified by the registration body for the purposes of this subsection, which shall not exceed the fee specified under section 34
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(2)(g) in relation to an application for the registration concerned.
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Publication of sanctions and convictions 58. (1) The registration body shall publish particulars, in such form and manner and for such period as it thinks fit, of a decision confirmed or given by the High Court under section 52 or 53 , or a conviction of a registered person under section 60 .
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(2)Where a registered person receives two or more minor sanctions within a period of 3 years, the registration body shall publish particulars, in such form and manner and for such period as it thinks fit, of the decisions of the Board or appeals committee imposing or upholding imposition of the minor sanctions on the registered person under section 49
\n
(2)(a) or section 50 .
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(3)Without prejudice to subsections (1) and (2), the registration body shall not publish particulars of any sanction imposed under this Act until the expiry of any time permitted for an appeal of the decision to impose the sanction.
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Transitional arrangements 59. (1) The Minister shall prescribe a period of at least 12 months for each division following which a provider of building works shall be required to be registered in order to provide works under that division.
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(2)A period prescribed under subsection (1) shall commence in relation to a division, on the date on which regulations made under section 29, prescribing the required qualifications or a level of practical experience or combination of both for registration in the division come into operation.
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(3)The Minister may prescribe different periods under subsection (1) for different divisions.
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Offences and penalties 60. (1) A person who— (a) knowingly makes any false or misleading statement in any application, complaint or appeal under this Act or any document required thereunder or otherwise gives false or misleading information to the registration body, the Board or the appeals committee, or (b) being a registered person, fails to comply with a condition of registration, shall be guilty of an offence.
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(2)A person guilty of an offence— (a) under section 47
\n
(15), subparagraph (10) of paragraph 2 of Schedule 2 , subparagraph (2) of paragraph 7 of Schedule 2 or paragraph (a) of subsection (1) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (b) under sections 30
\n
(7), 31
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(2), 33
\n
(3), 38
\n
(2)or paragraph (b) of subsection (1) shall be liable— (i) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (ii) on conviction on indictment to a fine not exceeding €500,000, or imprisonment for a term not exceeding 12 months, or both.
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(3)The Board may bring and prosecute summary proceedings for an offence under this Act.
\n
(4)Notwithstanding section 10
\n
(4)of the Petty Sessions (Ireland) Act 1851 , summary proceedings for an offence under this Act to which that provision applies may be instituted— (a) within 12 months from the date on which the offence was committed, or (b) within 6 months from the date on which evidence sufficient, in the opinion of the person instituting the proceedings, to justify proceedings comes to that person’s knowledge, whichever is the later, provided that no such proceedings shall be commenced later than 5 years from the date on which the offence concerned was committed.
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(5)For the purposes of subsection (4)(b), a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence referred to in that subsection came to his or her knowledge shall be evidence of that date and, in any legal proceedings, a document purporting to be a certificate under this subsection and to be so signed shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.
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(6)It shall be presumed, until the contrary is shown, that proceedings for an offence under this Act were commenced within the appropriate period.
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Liability for offences by bodies corporate 61. (1) Where— (a) an offence under this Act has been committed by a body corporate, and (b) the offence is proved to have been so committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either— (i) a director, manager, secretary or other officer of the body corporate, or (ii) purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
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(2)Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if he or she were a director or manager of the body corporate.
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Application for Court order where certain convictions 62. (1) Where a registered person is convicted of an offence to which this section applies, the registration body may, where it considers it appropriate in circumstances where the commission of the offence has caused loss of life, serious injury or substantial economic loss, apply to the Court, on notice to the registered person, seeking an order revoking the registration of that registered person and imposing a prohibition on that person.
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(2)An order under subsection (1) shall not take effect until— (a) the ordinary time for bringing an appeal against the conviction concerned has expired without any such appeal having been brought, (b) any such appeal has been withdrawn or abandoned, or (c) on any such appeal, the conviction or order, as the case may be, is upheld.
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(3)In considering an application under subsection (1) the Court may have regard to the circumstances considered by the Board under subsection (1) and to— (a) the seriousness of the offence, (b) the extent of any failure by the registered person to co-operate with an investigation of the offence, (c) any explanation provided by the registered person for the commission of the offence, (d) the duration of the conduct which constituted the commission of the offence, or (e) whether the person has a previous conviction for an offence under this Act.
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(4)The Registrar shall, as soon as practicable after a decision of the Court is made under this section, give notice to the person the subject of the application under subsection (1), of the decision, the date on which it was made and the date from which it will take effect.
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(5)In this section— “Court” means the High Court; “prohibition” means a prohibition from applying for registration in any division or particular class of works in a division and may include a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions.
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Relationship between investigation and criminal proceedings 63. (1) If a sanction is imposed on a person under section 49
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(2)or sections 50 , 52 or 53 , as the case may be, and the improper conduct in respect of which the sanction is imposed is an offence under this Act, the person is not liable to criminal proceedings under this Act for the offence in respect of the matter concerned.
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(2)An acknowledgment of an infringement of this Act by a person in an investigation under section 45 or oral hearing under section 49 is not admissible against the person in criminal proceedings other than criminal proceedings for an offence under section 47(15) or subparagraph (10) of paragraph 2 of Schedule 2 .
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Registration body designated as competent authority for providers of building works 64. (1) The registration body is designated, as of and from the day on which the register is established under section 26 , as the competent authority for providers of building works under the Professional Qualifications Regulations.
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(2)The registration body shall, on and after the day on which the register is established under section 26 , act as the competent authority for the purposes of all matters referred to in the Professional Qualifications Regulations which relate to the role of a competent authority for the purposes of the recognition of professional qualifications of persons engaged in the provision of works.
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(3)Unless otherwise specified in this Act, nothing in this Act shall be construed to prejudice the performance by the registration body of its functions under the Professional Qualifications Regulations as the competent authority in respect of providers of building works as a regulated profession (within the meaning of Regulation 3 of those Regulations).
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Application of section 29 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 65. Notwithstanding anything contained in section 29 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 , the Minister may designate the registration body to be a State body under subsection (3)(b) of section 29 of that Act.
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PART 8
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Miscellaneous amendments of Act of 2007 Amendment of section 2 of Act of 2007 66. Section 2 of the Act of 2007 is amended in paragraph (b) of the definition of “registration body” by the substitution of “the Society of Chartered Surveyors Ireland” for “the Society of Chartered Surveyors”.
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Amendment of section 17 of Act of 2007 67. Section 17 of the Act of 2007 is amended by the substitution of the following subsection for subsection (2): “(2) Where the Registrar has sent a notice by prepaid registered post to a registered professional’s address as given in the register and has sent a further notice to the person in such manner, including by electronic means, as the Registrar considers appropriate, requesting payment of the annual fee the Registrar may, if the person has not paid the fee within 2 months after sending the second notice, remove the person’s name from the register and thereupon shall send a notice by prepaid registered post informing the person that he or she is no longer registered.”.
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Continuing professional development (Part 3) 68. The Act of 2007 is amended by the insertion of the following new section after section 17: “17A. (1) The registration body shall maintain a system of continuing professional development of architects (in this section referred to as a ‘system of continuing professional development’).
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(2)A person registered under this Part shall, as a condition of continuing to be registered, comply with the requirements of the system of continuing professional development and shall provide evidence that he or she has so complied in such manner and at such time as may be specified by the registration body.
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(3)The name of a person who fails to comply with subsection (2) shall be removed from the register.”.
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Amendment of section 28 of Act of 2007 69. Section 28 of the Act of 2007 is amended, in subsection (1), by the substitution of “The Society of Chartered Surveyors Ireland” for “The Society of Chartered Surveyors”.
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Amendment of section 29 of Act of 2007 70. Subsection (2) of section 29 of the Act of 2007 is amended by the substitution of the following paragraph for paragraph (b): “(b) a fellow or professional member of the Society of Chartered Surveyors Ireland, Quantity Surveying Division;”.
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Amendment of section 31 of Act of 2007 71. Section 31 of the Act of 2007 is amended by the substitution of the following subsection for subsection (2): “(2) Where the Registrar has sent a notice by prepaid registered post to a registered professional’s address as given in the register and has sent a further notice to the person in such manner, including by electronic means, as the Registrar considers appropriate, requesting payment of the annual fee the Registrar may, if the person has not paid the fee within 2 months after sending the second notice, remove the person’s name from the register and thereupon shall send a notice by prepaid registered post informing the person that he or she is no longer registered.”.
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Continuing professional development (Part 4) 72. The Act of 2007 is amended by the insertion of the following new section after section 31: “31A. (1) The registration body shall maintain a system of continuing professional development of quantity surveyors (in this section referred to as a ‘system of continuing professional development’).
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(2)A person registered under this Part shall, as a condition of continuing to be registered, comply with the requirements of the system of continuing professional development and shall provide evidence that he or she has so complied in such manner and at such time as may be specified by the registration body.
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(3)The name of a person who fails to comply with subsection (2) shall be removed from the register.”.
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Amendment of section 42 of Act of 2007 73. Section 42 of the Act of 2007 is amended, in subsection (1), by the substitution of “The Society of Chartered Surveyors Ireland” for “The Society of Chartered Surveyors”.
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Amendment of section 43 of Act of 2007 74. Section 43 of the Act of 2007 is amended, in paragraphs (b) and (f) of subsection (2), by the substitution of “a fellow or professional member of the Society of Chartered Surveyors Ireland” for “a fellow or associate of the Society of Chartered Surveyors”.
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Amendment of section 45 of Act of 2007 75. Section 45 of the Act of 2007 is amended by the substitution of the following subsection for subsection (2): “(2) Where the Registrar has sent a notice by prepaid registered post to a registered professional’s address as given in the register and has sent a further notice to the person in such manner, including by electronic means, as the Registrar considers appropriate, requesting payment of the annual fee the Registrar may, if the person has not paid the fee within 2 months after sending the second notice, remove the person’s name from the register and thereupon shall send a notice by prepaid registered post informing the person that he or she is no longer registered.”.
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Continuing professional development (Part 5) 76. The Act of 2007 is amended by the insertion of the following new section after section 45: “45A. (1) The registration body shall maintain a system of continuing professional development of building surveyors (in this section referred to as a ‘system of continuing professional development’).
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(2)A person registered under this Part shall, as a condition of continuing to be registered, comply with the requirements of the system of continuing professional development and shall provide evidence that he or she has so complied in such manner and at such time as may be specified by the registration body.
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(3)The name of a person who fails to comply with subsection (2) shall be removed from the register.”.
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Amendment of section 57 of Act of 2007 77. Section 57 of the Act of 2007 is amended— (a) by the insertion of the following subsection after subsection (2): “(2A) The opinion of the Committee referred to in subsection (2) shall be final and shall not be a decision of the Committee for the purposes of section 25(1), 39(1) or 53(1).”, and (b) in subsection (5), by the substitution of “Subject to subsection (2A), the” for “The”.
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Amendment of section 71 of Act of 2007 78. Section 71 of the Act of 2007 is amended, in subsection (5)(a), by the substitution of “5” for “6”.
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PART 9
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Amendment of Nursing Homes Support Scheme Act 2009 Definition (Part 9) 79. In this Part— “Act of 2009” means the Nursing Homes Support Scheme Act 2009 ; “Act of 2022” means the Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022.
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Amendment of section 3 of Act of 2009 80. Section 3 of the Act of 2009 is amended, in subsection (1), by the insertion of the following definitions: “‘Act of 2022’ means the Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022; ‘eligible rental income’ has the meaning assigned to it by Schedule 1;”.
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Annual report relating to eligible rental income 81. The Act of 2009 is amended by the insertion of the following section after section 45A: “45AA. (1) The Executive shall prepare in respect of each year (or such longer period as the Minister may, following receipt of the third report under this section, prescribe by regulations) a report containing information in relation to— (a) the proportion of financial assessments in respect of which eligible rental income is taken into account, (b) the number of principal residences from which eligible rental income derives, (c) an assessment of likely trends arising from the effects on the Scheme of the treatment of eligible rental income, (d) the impact of the changes effected by
\n
Part 9
\n
of the Act of 2022 on outcomes for persons participating in the Scheme, including the timing of participation in the Scheme and risks relating to the safeguarding of vulnerable persons, and (e) such other matters as may be specified by the Minister.
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(2)The Executive shall send a copy of each report prepared under this section to the Minister— (a) before the end of June in the year following that to which the report relates, or (b) where the Minister has made regulations under subsection (1), before the end of June in the year following the last year to which the report relates.
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(3)For the purposes of preparing a report under subsection (1) and, subject to section 45(7), the Executive shall keep records of information in relation to— (a) financial assessments under section 10, (b) notifications under section 24 relating to eligible rental income, and (c) such other matters as may be specified by the Minister.”.
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Review of operation of amendments effected by Part 9 of Act of 2022 82. The Act of 2009 is amended by the insertion of the following section after section 45B: “45C. (1) The Minister shall, 6 months after the coming into operation of section 82 of the Act of 2022, carry out a review of the operation of the amendments to this Act effected by
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Part 9
\n
of the Act of 2022.
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(2)Without prejudice to the generality of section 45AA, the Minister shall, in consultation with the Minister for Public Expenditure and Reform and the Minister for Housing, Local Government and Heritage, prepare not later than 3 months after the commencement of the review under subsection (1) a report setting out the findings and conclusions consequent on such review.
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(3)The Minister shall cause a copy of the report prepared under subsection (2) to be laid before each House of the Oireachtas as soon as practicable after it has been prepared.”.
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Government order to modify assessment of eligible rental income 83. The Act of 2009 is amended by the insertion of the following section after section 45C: “45D. (1) Subject to subsection (3), where a report has been prepared under section 45C(2), the Government may, at the request of the Minister and the Minister for Housing, Local Government and Heritage, make an order— (a) providing that, with effect from such date as may be specified in the order— (i) step I of paragraph 2A of Part 1A of Schedule 1 and step K of paragraph 2A of Part 2A of that Schedule shall have effect as if such lower percentages as may be specified in the order were substituted for the percentages for the time being specified in those steps of those paragraphs, or (ii) Parts 1A and 2A of Schedule 1 shall have effect as if they had not been amended by section 84
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(1)and (2) of the Act of 2022, or (b) requiring the Minister, in consultation with the Minister for Public Expenditure and Reform and the Minister for Housing, Local Government and Heritage to prepare a further report setting out the findings and conclusions of the Minister in relation to the operation of the amendments to this Act effected by Part 9 of the Act of 2022 in respect of such period as may be specified in the order by such date as may be so specified.
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(2)Subject to subsection (3), where a further report has been prepared by virtue of an order under subsection (1)(b), the Government may, at the request of the Minister and the Minister for Housing, Local Government and Heritage, make an order under subsection (1)(a).
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(3)Before making an order under subsection (1) the Government shall consider whether it would be appropriate to do so having regard to— (a) the request referred to in that subsection or, as the case may be, subsection (2), and (b) where the order is to be made following— (i) a report prepared under section 45C(2), that report, and (ii) a further report prepared by virtue of an order under subsection (1)(b), that further report.
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(4)An order under subsection (1)(a)(i) may provide that— (a) step K of paragraph 2A of Part 1A of Schedule 1 (so far as relating to the amount produced by step F), and (b) step M of paragraph 2A of Part 2A of that Schedule (so far as relating to the amount produced by step H), shall have effect as if such percentages as may be specified in the order were substituted for the percentages for the time being specified in those steps of those paragraphs.
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(5)An order under subsection (1)(a)(ii) may provide that section 24 shall have effect as if the following subsection were substituted for subsection (1) of that section: ‘(1) A person (or the person’s care representative, if any) who is the subject of an application for State support or who is provided with financial support or a person who is a family successor shall give notice in writing to the Executive of— (a) any material change in circumstances, (b) any change in circumstances that results in eligible rental income becoming, or ceasing to be, payable, or (c) where eligible rental income is payable, any change in the amount of eligible rental income, not later than 10 working days after the material change or other change concerned comes to the knowledge of the person.’.
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(6)An order under this section may make such incidental, supplementary, consequential or transitional provision (including provision modifying the effect of this Act) as the Government consider necessary or expedient for the purposes of the order.
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(7)The Minister shall cause a copy of any further report prepared in pursuance of an order under subsection (1)(b) to be laid before each House of the Oireachtas as soon as practicable after it has been prepared.
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(8)An order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.”.
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Amendment of Schedule 1 to Act of 2009 84. (1) Part 1A of Schedule 1 to the Act of 2009 is amended— (a) by the substitution of the following paragraph for paragraph 2: “Assessment of income where no eligible rental income applicable 2. Where there is no eligible rental income, assess the weekly income by following the directions at steps A to E:
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A. Establish the annual income of the person using the definition of ‘income’.
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B. Deduct allowable deductions.
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C. Divide amount produced by step B by 52 to establish net weekly income.
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D. Take 80 per cent of amount produced by step C (net weekly income) which amount, unless step E applies, is the weekly assessed income.
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E. Where applying the rule in step D produces a result whereby 20 per cent of net weekly income is less than the minimum retained income threshold, the weekly assessed income is the amount established by step C less the minimum retained income threshold.”, and (b) by the insertion of the following paragraph after paragraph 2: “Assessment of income where eligible rental income applicable 2A. Where there is eligible rental income, assess the weekly income by following the directions at steps A to K:
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A. Establish the annual income of the person using the definition of ‘income’.
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B. Deduct allowable deductions.
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C. Divide amount produced by step B by 52.
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D. Establish the annual eligible rental income of the person.
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E. Deduct income tax required by law to be deducted or paid in respect of eligible rental income and in respect of which the applicant or any other person is not entitled to claim an exemption, relief or allowance or the repayment of tax already paid.
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F. Divide amount produced by step E by 52.
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G. Add amount produced by step C to amount produced by step F to establish net weekly income.
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H. Take 80 per cent of amount produced by step C.
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I. Take 40 per cent of amount produced by step F.
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J. Add amount produced by step H to amount produced by step I which amount, unless step K applies, is the weekly assessed income.
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K. Where applying the rule in step J produces a result whereby the sum of 20 per cent of the amount produced by step C and 60 per cent of the amount produced by step F is less than the minimum retained income threshold, the weekly assessed income is the amount established by step G less the minimum retained income threshold.”.
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(2)Part 2A of Schedule 1 to the Act of 2009 is amended— (a) by the substitution of the following paragraph for paragraph 2: “Assessment of income where no eligible rental income applicable 2. Where there is no eligible rental income, assess the weekly income by following the directions at steps A to F:
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A. Establish the annual income of the person and his or her partner using the definition of ‘income’.
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B. From the annual income of each of those persons deduct allowable deductions applicable to that person’s income to establish net annual income of each member of the couple.
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C. Aggregate the two net annual incomes established under step B.
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D. Divide amount produced by step C by 52 to establish net weekly income.
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E. Take 40 per cent of amount produced by step D and the amount established following that calculation is, unless step F applies, the weekly assessed income.
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F. Where applying the rule in step E produces a result whereby 60 per cent of net weekly income is less than the minimum retained income threshold, the weekly assessed income is the amount established by step D less the amount which is the minimum retained income threshold.”, and (b) by the insertion of the following paragraph after paragraph 2: “Assessment of income where eligible rental income applicable 2A. Where there is eligible rental income, assess the weekly income by following the directions at steps A to M:
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A. Establish the annual income of the person and his or her partner using the definition of ‘income’.
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B. From the annual income of each of those persons deduct allowable deductions applicable to that person’s income.
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C. Aggregate the two amounts produced by step B.
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D. Divide amount produced by step C by 52.
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E. Establish the amount of annual eligible rental income of the person and his or her partner.
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F. From the annual eligible rental income of each of those persons deduct income tax required by law to be deducted or paid in respect of eligible rental income and in respect of which the applicant or any other person is not entitled to claim an exemption, relief or allowance or the repayment of tax already paid.
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G. Aggregate the two amounts produced by step F.
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H. Divide amount produced by step G by 52.
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I. Add amount produced by step D to amount produced by step H to establish net weekly income.
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J. Take 40 per cent of amount produced by step D.
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K. Take 20 per cent of amount produced by step H.
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L. Add amount produced by step J to amount produced by step K which amount, unless step M applies, is the weekly assessed income.
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M. Where applying the rule in step L produces a result whereby the sum of 60 per cent of the amount produced by step D and 80 per cent of the amount produced by step H is less than the minimum retained income threshold, the weekly assessed income is the amount established by step I less the minimum retained income threshold.”.
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(3)Part 3 of Schedule 1 to the Act of 2009 is amended— (a) in paragraph 1— (i) in the definition of “income”, in paragraph (b), by the insertion of “(other than eligible rental income)” after “income”, and (ii) by the insertion of the following definition: “‘eligible rental income’ means— (a) any payments made to a person who is receiving care services or his or her partner in respect of rent under— (i) a tenancy of the principal residence of the person who is receiving care services that is registered under Part 7 of the Residential Tenancies Act 2004 , or (ii) a tenancy of the principal residence of the person who is receiving care services where the principal residence is situated within the State and is a dwelling of a type described in any of paragraphs (b) to (e) or (g) to (i) of section 3(2) of that Act, in respect of a period beginning on or after the day on which section 84(3)(a) of the Act of 2022 comes into operation, and (b) any payments made in respect of rent under a tenancy such as is mentioned in subparagraph (i) or (ii) of paragraph (a) in respect of a period beginning on or after the day on which section 84(3)(a) of the Act of 2022 comes into operation which the person whose means are being assessed would have been entitled to receive in the assessable period, but which by reason of a particular action having been taken by or on behalf of that person, a person other than the person whose means are being assessed has received, is receiving or will receive an amount of money or monies worth (whether by way of a single payment or a series of payments) and which action by the person whose means are being assessed occurred within 5 years of the date of first application for State support but does not include any such payments earned by a family successor in the course of running a family asset;”, and (b) by the insertion of the following paragraph after paragraph 2: “2A. For the purposes of the definition of ‘eligible rental income’, the definition of ‘principal residence’ applies notwithstanding that a person is not residing in his or her principal residence because the person is receiving care services.”.
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PART 10
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Amendment of Affordable Housing Act 2021 Interpretation - Part 10 85. In this Part, “Act of 2021” means the Affordable Housing Act 2021 .
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Provision supplemental to section 41 of Act of 2021 86. The Act of 2021 is amended by the insertion of the following section after section 41: “41A. (1) Any deed or agreement between the special purpose vehicle and the homeowner which secures the equity share of the special purpose vehicle in a dwelling shall be registrable in the Registry of Deeds as an act of the homeowner affecting the dwelling.
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(2)For the avoidance of doubt, the court or, subject to an appeal to the court, the Authority may on an application to it under section 98 of the Act of 1964 make an order or, in the case of an application to the Authority, an entry, under that section inhibiting any registration, on any folio in which a dwelling or any part thereof is registered, under a disposition by, or transmission from, the registered owner without the consent of the special purpose vehicle.
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(3)Where, in accordance with the memorandum of agreement referred to in section 41, any deed or agreement between the special purpose vehicle and the homeowner confers a power of sale of the dwelling on the special purpose vehicle (referred to in this section as a ‘power of sale’), the following provisions shall apply: (a) a sale by the special purpose vehicle professed to be in exercise of the power of sale shall operate to convey the dwelling concerned to the purchaser thereof— (i) freed from all estates, interests and rights in respect of which the equity share has priority, (ii) unless discharged by the special purpose vehicle, subject to all estates, interests and rights which have priority over the equity share; (b) subject to section 51 of the Act of 1964, a conveyance by the special purpose vehicle to a purchaser vests— (i) the entire estate or interest of the homeowner and the special purpose vehicle in the dwelling in the purchaser freed and discharged from the equity share, (ii) any fixtures included in the dwelling and the sale in the purchaser.
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(4)At any time after the power of sale becomes exercisable, the special purpose vehicle may— (a) demand and obtain from any mortgagee whose mortgage ranks in priority to the equity share particulars of the moneys secured on such mortgage and any ancillary information reasonably necessary to exercise the power of sale, and (b) exercise the power of sale notwithstanding any priority of such mortgage.
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(5)Where a conveyance is made in professed exercise of the power of sale, the title of the purchaser is not impeachable on the ground that the power of sale was not exercisable or was improperly exercised, and a purchaser thereof is not, either before or on conveyance, required to see or inquire whether the power of sale was properly exercised.
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(6)Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the special purpose vehicle exercising the power.
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(7)Moneys received by the special purpose vehicle that arises from the sale of the dwelling concerned shall be applied in the following order: (a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances; (b) in payment of all charges, costs and expenses properly incurred by the special purpose vehicle as incidental to the sale or any attempted sale or otherwise; (c) in discharge of the equity share and any costs and expenses properly incurred by the special purpose vehicle in any proceedings necessary to recover possession of the dwelling.
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(8)Any residue of the money received by the special purpose vehicle after the discharge of the amount due under subsection (7)(c) shall be held by the special purpose vehicle upon the trusts provided for in section 107
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(3)of the Land and Conveyancing Law Reform Act 2009 and distributed accordingly.
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(9)In this section— ‘Act of 1964’ means the Registration of Title Act 1964 ; ‘Authority’ means the Property Registration Authority; ‘dwelling’ means a dwelling in which a special purpose vehicle purchases an equity share; ‘equity share’ means an equity share referred to in section 41(1); ‘homeowner’ means the owner of a dwelling; ‘special purpose vehicle’ means a special purpose vehicle referred to in section 41(1) and, in relation to any equity share, includes a successor in title of the special purpose vehicle to such equity share.”.
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Amendment of section 12 of Act of 2021 87. Section 12 of the Act of 2021 is amended, in subsection (7)(h)(iii), by the insertion of “or otherwise” after “in accordance with section 13”.
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Amendment of section 13 of Act of 2021 88. Section 13 of the Act of 2021 is amended— (a) by the substitution of the following subsection for subsection (1): “(1) An affordable dwelling purchase arrangement shall be registrable in the Registry of Deeds as an act of the homeowner affecting the dwelling.”, and (b) by the substitution of the following subsection for subsection (2): “(2) For the avoidance of doubt, the court or, subject to an appeal to the court, the Property Registration Authority may on an application to it under section 98 of the Registration of Title Act 1964 make an order or, in the case of an application to the Authority, an entry, under that section inhibiting any registration, on any folio in which an affordable dwelling or any part thereof is registered, under a disposition by, or transmission, from, the registered owner without the consent of the housing authority.”.
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Amendment of section 16 of Act of 2021 89. Section 16 of the Act of 2021 is amended, in subsection (4), by the substitution of “confirm such redemption and effect the discharge or cancellation of any order or entry referred to in section 13(2)” for “effect the discharge or cancellation of the affordable dwelling purchase arrangement as a burden on the affordable dwelling”.
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Amendment of section 17 of Act of 2021 90. Section 17 of the Act of 2021 is amended, in subsection (9), by the substitution of “confirm such payment and effect the discharge or cancellation of any order or entry referred to in section 13(2)” for “effect the discharge or cancellation of the affordable dwelling purchase arrangement as a burden on the affordable dwelling”.
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PART 11
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Amendment of Residential Tenancies Act 2004 Definition (Part 11) 91. In this Part, ‘Act of 2004’ means the Residential Tenancies Act 2004 .
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Amendment of section 34 of Act of 2004 92. Paragraphs 4(b), 5(b) and 6(b) of the Table to section 34 of the Act of 2004 are each amended— (a) by the deletion of “the contact details requirement is complied with and”, and (b) in subparagraph (ii), by the insertion of “1A,” after “paragraph 1,”.
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Amendment of section 35 of Act of 2004 93. (1) Section 35 of the Act of 2004 is amended— (a) by the deletion of subsection (5), (b) in subsection (6), by the insertion of “not exceeding 7 days” after “reasonable period”, (c) by the insertion of the following subsection after subsection (6): “(6A) If an offer such as is referred to in paragraph (aa) of subsection (8), or paragraph 4(b), 5(b) or 6(b) of the Table, is not accepted (within such reasonable period not exceeding 7 days as shall be specified for that purpose in the offer) by the former tenant concerned, there is no tenancy agreement and the former tenant is not entitled to occupy the dwelling.”, (d) in paragraph (aa) of subsection (8) — (i) by the deletion of subparagraph (i), and (ii) in subparagraph (iii), by the insertion of “1A,” after “paragraph 1,”, (e) by the substitution of the following subsection for subsection (11): “(11) (a) Where, in respect of a tenancy, a landlord serves on a tenant a notice of termination, the landlord shall comply with subsection (1) of section 39A. (b) A notice of termination referred to in paragraph (a) served in contravention of subsection (1) of section 39A shall be invalid.”, and (f) by the insertion of the following subsections after subsection (11): “(12) Upon receipt of a copy of a notice of termination under section 39A, for the purpose of facilitating the making of an offer referred to in paragraph (aa) of subsection (8), or paragraph 4(b), 5(b) or 6(b) of the Table, the Board shall— (a) invite the tenant concerned, to confirm or provide, as appropriate, his or her contact details in writing to the Board, and (b) request the consent of the tenant to the provision of his or her contact details by the Board to the landlord upon request.
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(13)Where a landlord is required to make an offer referred to in paragraph (aa) of subsection (8), or paragraph 4(b), 5(b) or 6(b) of the Table, but cannot contact the tenant concerned despite having made reasonable inquiry to ascertain the tenant’s current contact details, he or she shall, for the purpose of making that offer, make a request in writing to the Board seeking the contact details of the tenant.
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(14)Where a landlord makes a request under subsection (13), the Board shall— (a) where the tenant concerned has provided his or her contact details and consent under subsection (12) or pursuant to a notice under paragraph (b), provide the contact details of the tenant to the landlord as soon as practicable on or after the date of the request, or (b) where the tenant concerned has not provided his or her contact details or consent under subsection (12), as soon as practicable on or after the date of the request, notify the tenant that— (i) a request under subsection (13) has been received, and (ii) unless the tenant provides his or her contact details and consent under subsection (12) to the Board within a period of 7 days after the date of the notice, the landlord shall not be required to make an offer under paragraph (aa) of subsection (8), or paragraph 4(b), 5(b) or 6(b) of the Table.
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(15)Where the contact details of a tenant cannot be ascertained by reasonable inquiry by a landlord or by the Board under subsection (12) or (14), the landlord shall not be required to make an offer under paragraph (aa) of subsection (8), or paragraph 4(b), 5(b) or 6(b) of the Table.”.
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(2)The amendments to section 35 of the Act of 2004 under subsection (1) shall apply to a notice of termination served on or after the commencement of subsection (1).
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Amendment of section 39A of Act of 2004 94. Section 39A of the Act of 2004 is amended— (a) in subsection (1), by the deletion of “for failure by the tenant to comply with paragraph (a) of section 16”, and (b) in subsection (2), by the insertion of “, the period after which, under section 80, a dispute may not be referred to the Board and give the tenant and the landlord a copy of the statement given under paragraph (e) of subsection (4) of section 135” after “section 76”.
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Amendment of section 65 of Act of 2004 95. (1) Section 65 of the Act of 2004 is amended, in subsection (4), by the substitution of “90 days” for “70 days”.
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(2)The amendment of section 65 of the Act of 2004 under subsection (1) shall apply to a notice of termination served on or after the commencement of subsection (1).
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Amendment of section 66 of Act of 2004 96. (1) Section 66 of the Act of 2004 is amended by the substitution of the following Table for Table 1: “Termination by Landlord Duration of Tenancy
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(1)Notice Period
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(2)Less than 6 months 90 days Not less than 6 months but less than one year 152 days Not less than one year but less than 7 years 180 days Not less than 7 years but less than 8 years 196 days Not less than 8 years 224 days ”.
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(2)The amendment of Table 1 to section 66 of the Act of 2004 under subsection (1) shall apply to a period of notice to be given in a notice of termination served by a landlord on a tenant on or after the commencement of subsection (1).
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(3)The Minister shall— (a) not earlier than 2 years and not later than 3 years after the coming into operation of subsection (1), commence a review of the operation of the amendments of section 66 effected by that subsection, (b) not later than 6 months after the commencement of the review, prepare a report in writing of the findings of the Minister resulting from the review and his or her conclusions drawn from the findings, and (c) cause a copy of the report referred to in paragraph (b) to be laid before each House of the Oireachtas.
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Amendment of section 67 of Act of 2004 97. Section 67 of the Act of 2004 is amended by the deletion of subsection (3C).
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Amendment of section 80 of Act of 2004 98. (1) The Act of 2004 is amended by the substitution of the following section for section 80— “80. A dispute relating to the validity of a notice of termination which has been served or purported to be served may not be referred to the Board for resolution at any time after— (a) where section 67 or 68 applies, the period of 28 days, or (b) in all other cases, the period of 90 days, has elapsed from the date of receipt of that notice.”.
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(2)The amendment of section 80 of the Act of 2004 under subsection (1) shall apply to a notice of termination served on or after the commencement of subsection (1).
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Collective citation, construction and commencement of Part 11 99. (1) This Part shall come into operation on the day after the date of the passing of this Act.
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(2)The Residential Tenancies Acts 2004 to 2021 and this Part may be cited together as the Residential Tenancies Acts 2004 to 2022 and shall be construed together as one.
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PART 12
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Amendment of Housing (Regulation of Approved Housing Bodies) Act 2019 Amendment of section 34 of Housing (Regulation of Approved Housing Bodies) Act 2019 100. Subsection (6) of section 34 of the Housing (Regulation of Approved Housing Bodies) Act 2019 is amended— (a) in paragraph (a), by the substitution of “2 years” for “12 months”, (b) in paragraph (b), by the substitution of “3 years” for “2 years”, (c) in paragraph (c), by the substitution of “4 years” for “3 years”, and (d) in paragraph (d), by the substitution of “4 years” for “3 years”.
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Commencement of Part 12 101. This Part shall come into operation on the day after the date of the passing of this Act.
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SCHEDULE 1 Provisions applicable to Oral Hearings conducted under section 49(3) 1. A request by a registered person for an oral hearing under section 49
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(3)shall be made— (a) in writing to the Board, and (b) within the period of 30 days referred to in section 46
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(1)(c)(ii).
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2.The Board shall not consider a request for an oral hearing made later than the expiration of the period referred to in paragraph 1(b).
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3.Where the Board refuses a request to conduct an oral hearing, it shall give notice to the registered person of its decision and the reasons for its decision.
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4.The Board in conducting an oral hearing may take evidence on oath, and the administration of such an oath by any member of the Board is hereby authorised.
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5.The Board may by notice in writing require any person to attend the oral hearing at such time and place as is specified in the notice to give evidence in respect of any matter in issue in the making of the decision under section 49
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(2)or to produce any relevant documents within his or her possession or control or within his or her procurement.
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6.Subject to paragraph 7, a person referred to in paragraph 5 may be examined and cross-examined at the oral hearing.
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7.A person referred to in paragraph 5 shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in that paragraph as if the person were a witness before the High Court.
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8.Where a person referred to in paragraph 5 does not comply or fully comply with a requirement referred to in that paragraph, the Board may apply in a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply or fully comply, as the case may be, with the requirement within a period to be specified by the Court, and the Court may make the order sought or such other order as it thinks fit or refuse to make any order.
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9.The jurisdiction conferred on the Circuit Court by paragraph 8 may be exercised by the judge of that Court for the circuit in which the person concerned ordinarily resides or carries on any profession, business or occupation.
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10.An oral hearing shall be considered in public unless the Board of its own motion or on an application by or on behalf of a party to the hearing, determines that, due to the existence of special circumstances, the hearing (or part of it) should be conducted otherwise than in public.
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11.The Board may impose restrictions in relation to the disclosure, publication or reporting of any material referred to in an oral hearing that might be commercially sensitive.
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12.Where the Board intends to hold an oral hearing, it shall ensure that notice is given to the registered person the subject of the hearing of the date, time and place of any hearing in sufficient time to enable the registered person to prepare for the hearing.
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13.In the event that a registered person the subject of an oral hearing (or his or her representative) is not present at the hearing, the Board may proceed with the hearing where it is satisfied that all reasonable efforts have been made to place the registered person on notice of the date and time of the hearing.
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SCHEDULE 2 Miscellaneous matters concerning Board and Appeals Committee 1. Term of office
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(1)Subject to this Act, a member of the Board or appeals committee shall hold office for a period of up to 4 years, as the Minister considers appropriate from the date of his or her appointment.
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(2)A person may not be appointed to be a member of the Board or appeals committee for more than 2 terms whether consecutive or otherwise.
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(3)A member of the Board or appeals committee may at any time resign from office by letter addressed to the Minister and the resignation shall take effect on the date of the next meeting of the Board or appeals committee.
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(4)A member of the Board or appeals committee shall, unless he or she sooner dies, becomes disqualified from holding office, resigns, is removed from office or otherwise ceases to be a member, hold office as such member until the expiration of his or her term of office.
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(5)The chairperson of the Board or appeals committee shall hold office as chairperson until his or her term of office as a member of the Board or appeals committee expires, unless that person sooner dies, becomes disqualified from holding office, resigns, is removed from office or otherwise ceases to be a member, but, if reappointed as a member, shall be eligible to be designated as the chairperson.
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2.Removal from office
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(1)The Minister may remove a member of the Board or appeals committee from office— (a) if he or she is satisfied that one or more of the grounds specified in subparagraph (2) apply to the member concerned, or (b) if he or she, having considered a recommendation of the registration body under subparagraph (3), is satisfied that the member should be removed.
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(2)The grounds referred to in subparagraph (1) are as follows, namely that the member of the Board or appeals committee concerned: (a) has become incapable through ill health of effectively performing his or her functions; (b) has engaged in serious misconduct; (c) has failed without reasonable cause to perform his or her functions for a continuous period of at least 3 months during the 6 months immediately preceding and ending on the date of the giving of the notice under subparagraph (4); (d) has contravened to a material extent a provision of the Ethics in Public Office Acts 1995 and 2001.
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(3)The registration body may, for the purposes of subparagraph (1), recommend to the Minister the removal from office of a member of the Board or the appeals committee if the member has provided works in contravention of this Act, the Act of 1981, the Act of 1990, the Act of 2005 or the relevant environmental legislation, and the Minister shall consider any such recommendation.
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(4)Where the Minister proposes to remove a member of the Board or appeals committee from office under subparagraph (1), he or she shall give notice in writing to the member concerned of the proposal.
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(5)A notice under subparagraph (4) shall include a statement— (a) of the reasons for the proposed removal from office, (b) that the member concerned may, within a period of 30 working days beginning on the date of the notice or such longer period as the Minister may, having regard to the requirements of natural justice, make representations to the Minister in such form and manner as may be specified by the Minister, as to why the member should not be removed from office, and (c) that where no representations are received within the period referred to in clause (b) or the period specified in the notice, as the case may be, the Minister shall, without further notice to the member concerned, proceed with the removal of the member from office in accordance with this paragraph.
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(6)In considering whether to remove a member from office, the Minister shall take into account— (a) any representations made pursuant to clause (b) of subparagraph (5), within the period referred to in that clause or the period specified in the notice, as the case may be, and (b) any other matter the Minister considers relevant for the purpose of his or her decision.
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(7)The Minister may, if he or she considers it necessary or appropriate to do so, appoint an independent person to— (a) hold an inquiry into any matter giving rise to a notification under subparagraph (4), and (b) report to the Minister on the findings of the inquiry.
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(8)An independent person appointed under subparagraph (7) to hold an inquiry may do one or more of the following: (a) direct a person, by notice delivered to him or her, to provide any information that is specified in the notice and is required for the purposes of the inquiry; (b) direct any person, by notice delivered to him or her, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control; (c) summon witnesses to attend the inquiry; (d) direct a witness to answer a question put to him or her at the inquiry; (e) give any other direction that appears to the person appointed under this section to be necessary, just and reasonable for the purposes of the inquiry; (f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry.
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(9)If a person fails or refuses to comply with or disobeys a direction or summons under subparagraph (8), the High Court may, on application by the independent person appointed under subparagraph (7) — (a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and (b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry.
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(10)A person who— (a) is given a direction under subparagraph (8) and who, without lawful excuse, refuses or fails to comply with a direction under clause (a) or (b) of subparagraph (8), (b) fails, without lawful excuse, to attend an inquiry in response to a summons under subparagraph (8)(c), (c) refuses to answer a question that the independent person conducting the inquiry may legally direct him or her to answer, or (d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court, shall be guilty of an offence.
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(11)A statement or admission made by a person pursuant to a direction under subparagraph (8) shall not be admissible as evidence in proceedings brought against that person for an offence (other than an offence under subparagraph (10)).
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(12)If an inquiry is held, the Minister shall— (a) consider the report on the findings of the inquiry, (b) in a case where the reasons for the proposed removal from office of the member of the Board or appeals committee concerned relate either solely or partially to a matter referred to in subparagraph (1)(b), inform the registration body of the findings of the inquiry in so far as they relate to those matters, (c) make a copy of the report available to the member of the Board or appeals committee whose removal from office is the subject of the report, and (d) give that member of the Board or appeals committee an opportunity to make representations relating to the report.
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(13)Where, having taken into account the matters referred to in subparagraph (6), or, as the case may be, subparagraph (12), the Minister decides to remove the member of the Board or appeals committee from office, he or she shall give notice to the member of the decision and of the reasons for that decision.
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(14)The member of the Board or appeals committee may, within 30 working days beginning on the date of the notice under subparagraph (13), appeal to the High Court against the decision of the Minister.
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(15)On hearing an appeal under subparagraph (14), the High Court may, as it thinks proper, either affirm or overturn the decision concerned.
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3.Casual vacancies
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(1)Where a member of the Board or appeals committee dies, becomes disqualified from holding office, resigns, is removed from office or otherwise ceases to be a member, the Minister may appoint a person to be a member of the Board or appeals committee to fill the resultant casual vacancy.
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(2)(a) Any requirement (whether as to consultation, obtaining of another’s approval or otherwise) that applies with respect to the nomination of a person for appointment to the Board or the appeals committee shall apply to the nomination of a person for appointment to fill a casual vacancy amongst the membership of the Board or appeals committee. (b) Where the term of office of a member of the Board or appeals committee terminates otherwise than by reason of the passage of time, the period of office of the person appointed to fill the vacancy occasioned by that other’s ceasing to hold office shall be specified to be the unexpired period of that other’s term of office.
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(3)Where the Government makes an order under section 8
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(2)pursuant to a request of the Minister under section 9
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(2), the Board and appeals committee shall be dissolved and a new Board and appeals committee shall be appointed.
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4.Meetings
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(1)The Board or appeals committee shall hold such meetings as it considers necessary for the performance of its functions.
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(2)At a meeting of the Board or appeals committee, the chairperson or, in the chairperson’s absence a member chosen by those present, shall chair the meeting.
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(3)The chairperson and each other member of the Board or appeals committee shall have a vote.
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(4)Every question at a meeting of the Board or appeals committee shall be determined by a majority of votes of members present and the chairperson shall have a casting vote in the event of an equal division.
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(5)The quorum for such a meeting shall be 6 members in the case of the Board and 3 members in the case of the appeals committee, of which, subject to subparagraph (6), the majority shall be members who were nominated for appointment as members of the Board or appeals committee, as the case may be, by the Minister.
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(6)There may be reckoned for the purposes of that majority the chairperson of the Board or appeals committee, as the case may be, if he or she is present at the meeting.
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(7)The Board or appeals committee may perform its functions whether or not there is a vacancy in its membership and none of its proceedings are invalidated by any defect in the appointment of a member to it.
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(8)In relation to the appeals committee, this paragraph shall operate subject to section 24 .
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(9)The Registrar and an employee of the registration body may attend a meeting of the Board but shall not be reckoned for the purposes of a quorum.
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5.Ceasing to be qualified
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(1)A member of the Board or appeals committee shall cease to be qualified for office and shall cease to hold office if he or she— (a) is adjudicated bankrupt, (b) makes a composition or arrangement with creditors, (c) is sentenced by a court of competent jurisdiction to a term of imprisonment, (d) is convicted of any indictable offence in relation to a company or any other body corporate, (e) is convicted of an offence involving fraud or dishonesty, (f) has a declaration under section 819 of the Act of 2014 made against him or her or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or (g) is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, whether by virtue of that Chapter or any other provision of that Act.
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(2)Where a member of the Board or appeals committee is— (a) nominated as a member of Seanad Éireann, (b) elected as a member of either House of the Oireachtas or to be a representative in the European Parliament, or (c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 as having been elected to that Parliament, he or she shall thereupon cease to be a member of the Board or appeals committee.
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(3)A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit in that House or who is a representative in the European Parliament shall be disqualified, while he or she is so entitled or is such a representative, from being a member of the Board or appeals committee.
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6.Interest in matter before meeting of Board
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(1)Subparagraph (2) applies where at a meeting of the Board any of the following matters arise, namely— (a) an arrangement to which the Board is a party, (b) an arrangement to which the Board proposes to become a party, (c) a contract or other agreement with the Board, or (d) a proposed contract or other agreement with the Board.
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(2)Any member of the Board present at the meeting referred to in subparagraph (1) who has a pecuniary interest or other beneficial interest in, or material to, the matter concerned shall— (a) disclose to the Board at the meeting the fact of that interest and its nature, (b) not influence (or seek to influence) a decision to be made in relation to the matter, (c) absent himself or herself from the meeting or that part of the meeting during which the matter is being discussed, (d) take no part in any deliberation of the governing body relating to the matter, and (e) not vote on a decision relating to the matter.
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(3)Where an interest is disclosed pursuant to subparagraph (2), the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the member of the Board by whom the disclosure is made shall not be counted in the quorum for the meeting.
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(4)Where at a meeting of the Board a question arises as to whether or not a course of conduct, if pursued by a member of the Board would constitute a failure by him or her to comply with the requirements of subparagraph (2), the question may, subject to subparagraph (5), be determined by the chairperson of the meeting, whose decision shall be final, and where the question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.
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(5)Where, at a meeting of the Board, the chairperson of the meeting is the member in respect of whom a question to which subparagraph (4) applies falls to be determined, the other members of the Board attending the meeting shall choose one of their number to be chairperson of the meeting for the purpose of determining the question concerned.
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7.Confidential information
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(1)A person shall not, unless he or she is authorised by the Board, disclose confidential information obtained by him or her while performing functions as— (a) a member of or an adviser or consultant to the Board or a member of the staff of such an adviser or consultant, or (b) a member of a committee of the Board established under section 23 .
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(2)A person who contravenes subparagraph (1) shall be guilty of an offence.
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(3)Nothing in subparagraph (1) shall prevent the disclosure of information— (a) in a report made to the Board or appeals committee, (b) by or on behalf of the Board to the Minister, (c) by a member of the Board to the Minister, or (d) by a person in the circumstances referred to in section 35
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(2)of the Ethics in Public Office Act 1995 .
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(4)In subparagraph (1) “confidential information” includes— (a) information that is expressed by the registration body to be confidential either as regards particular information or as regards information of a particular class or description, and (b) proposals of a commercial nature or tenders submitted to the registration body by contractors, consultants or any other person.
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8.Application of paragraph 6 and 7 to committees of Board Paragraphs 6 and 7 shall apply to a member of a committee of the Board established under section 23 where the member is not also a member of the Board and for the purposes of that application— (a) a reference to a member of the Board shall be construed as reference to a member of the committee, and (b) a reference to the Board shall be construed as reference to the committee.
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9.Regulation of procedure and rules
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(1)Subject to this Act, the Board shall regulate, by standing orders or otherwise, which may be made, amended or revoked as it sees fit, for the conduct of its procedure and business.
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(2)Standing orders made by the Board under subparagraph (1) shall be published on a website maintained by or on behalf of the Board.
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