Chapter 5
Important changes to the Building Regulations: a new dutyholder regime
This chapter – at a glance
- The Building Regulations etc. (Amendment) (England) Regulations 2023 (BRA) form part of the package of secondary legislation that has been introduced to facilitate the implementation of the changes to the building control regime that include a new building control process for HRB work as well as changes to non-HRB work which will raise standards across the built environment
- BRA introduces new duties on clients, designers and contractors that will apply to will apply to all building work, which place legal responsibilities on those involved in the commissioning, design and construction of building work, and those who carry out building control with new dutyholder and competence requirements under the Building Regulations
- BRA imposes duties on the construction client, the ‘principal designer’, ‘principal contractor’ – and also on designers and contractors generally: the duties will apply to any design or building work being undertaken and will apply until the end of the construction phase
- The client’s duties
- Who is the client?
- Making suitable arrangements
- What are the relevant requirements?
- What are the suitable arrangements?
- Extent of the client’s duties
- Other suitable arrangements
- Client notice duties
- Specific client duties in relation to HRBs
- Appointing the principal designer and principal contractor
- General duties of designers and contractors
- Specific duties imposed on all designers and contractors
- Specific duties imposed on principal designers and contractors
- Principal designers
- Principal contractors
- Competence
- Getting to grips with the new requirements
Introduction
Ever since the Bill that led to the BSA was first published, we have known that a key objective of the government’s overarching framework has been to create a sea change in the way compliance with the Building Regulations are managed. This is evident in Part 3 of the BSA, which deals with the Building Act ; the initial sections of Part 3 appear under the heading Building control authorities and Building Regulations.
Almost two years ago, and six months prior to the BSA receiving Royal Assent, DLUHC published a significant set of draft regulations, which bore the technical name the Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulation (2021), and which were referred to by the construction industry as “the dutyholder regulations”.
Following the BSA being granted Royal Assent, DLUHC removed from its website all the draft subordinate legislation which it had published whilst the BSA was in the form of a Bill, and various government consultations on different parts of the wider framework then followed. Along with the industry, we expected a new set of regulations to be issued or, alternatively, substantial amendments to The Construction (Design and Management) Regulations 2015 (CDM). However, what was published in August, through BRA, are detailed amendments to the Building Regulations which include a substantial and important new section that will form part of the Building Regulations – the new Part 2A: Dutyholders and competence.
BRA is essential reading for anyone who procures building work, designs building work or constructs building work. Not only do the BRA introduce important new duties into the Building Regulations 2010 that apply both to HRBs and other construction projects, but the amendment regulations also cover competence and the behaviours of clients, designers, and contractors.
The duties come into force on 1 October 2023, but there is a transitional period for certain projects that are under way – where building work started before 1 October 2023 or where plans were deposited with the planning authority, or a building notice was given to a local authority before 1 October 2023. Chapter 6 looks at the transitional arrangements that apply from October in more detail.
The new duties – The focus on compliance and competence
One of the primary functions of the new duties is to ensure that all parties to a construction project, whether for an HRB or otherwise, have compliance with the functional requirements of the Building Regulations as a central focus. A second function of the new duties, and of equal importance, is to ensure that all parties to a construction project are competent. Put simply, the new duties are designed to ensure that those working on a construction project know what they are doing and know how to comply with Building Regulations.
The new duties impose obligations on the client, the principal designer, and the principal contractor. While the duty holder descriptions are the same as those used in CDM, the duties themselves are very different. Readers will be aware that the focus of CDM is very much on ensuring that the design and construction of a project is planned and undertaken in a way that prevents accidents and fatalities. The new duties, on the other hand, are all about ensuring compliance with the relevant requirements as set out in the Building Regulations.
This raises the obvious question: can CDM dutyholders simply assume the new BRA duties by adding them to the list of their existing duties? In most cases, the answer will be yes. The client will be the client for the purposes of both sets of regulations, as, no doubt, will the principal contractor. The only area of potential difficulty sits with the principal designer. Under the BRA, the person appointed to this role must be the person who has overall control of the design work. So, in a design and build type arrangement, where the principal contractor is in control of the design process, it will be the principal contractor who takes on the role of principal designer for the BRA. Where the principal designer is not going to be the principal contractor, but an architect (where the design of the project is being undertaken separately), it is apparent from the scope of the BRA duties that, in addition to being on control of the design, the principal designer will need to have demonstrable competence in fire and structural safety.
Let’s now look at the duties in detail.
The client’s duties
1. Who is the client?
The client is defined as the person for whom a project is carried out. In nearly all cases, this will be the employer under a construction contract. In cases where a person has contracted for a project under a development agreement arrangement, and under such an arrangement the developer is the employer under a construction contract, that developer will almost certainly be the client for the purposes of the new duties. In a joint venture arrangement that utilises a special purpose vehicle as the employer under a construction contract, it will be that vehicle that will need to discharge the duties.
2. Making suitable arrangements
So, what does the client have to do? The client must make suitable arrangements for planning, managing, and monitoring a project to ensure compliance with all relevant requirements.
The first question is what is a project? It is defined widely to include any building work, including the planning of it, the design and management of it, right up until the end of the construction phase.
This means that, from the moment you start putting initial designs together for the purposes of planning, right through to practical completion, the client (along with principal designer and the principal contractor) will need to focus on meeting the relevant requirements.
What are the relevant requirements?
BRA introduces a new definition of relevant requirements for these purposes, which we have set out below’ to ‘BRA introduces a new definition of relevant requirements for these purposes, meaning the requirements of the regulations which we have set out below.
What then are the suitable arrangements that need to be put in place to ensure the relevant requirements are met?
The arrangements will be suitable[i] where:
- “They ensure that the design work is carried out so the building work to which the design relates, if built, would be in compliance with the relevant requirements”;
- “They ensure the building work is carried out in accordance with the relevant requirements”;
- “They enable the designers and contractors to cooperate with each other to ensure compliance with all relevant requirements”; and
- “They provide for periodic review of the building work (and the design work) included or to be included in the project so as to identify whether it is higher risk building work.”
[i] Regulation 6(1) of BRA
So, putting all that together, the client will need to make sure a (competent) principal designer is appointed to review/approve the designs to make sure the relevant requirements have been met and that, during the construction phase, steps are taken (whether through a clerk of works or checking engineer function) to ensure the works are being constructed by a (competent) principal contractor in accordance with those designs and the relevant requirements generally and, where the principal designer is not the principal contractor, that the two work alongside each other with the client to make sure the relevant requirements are met.
Stepping back from this, it is quite clear that the BRA duties have been imposed to ensure that everyone involved in the project starts thinking about the importance of, not just fire and structural safety, but also matters such as energy efficiency and high-speed internet connections right at the outset of the design phase and that the project is undertaken in a way that the functional requirements of the Building Regulations will be met.
This means the project team will need to start thinking very carefully about compliance with the relevant Building Regulations at an early stage. In addition, once the client and its project team are satisfied the design meets the relevant requirements, and once building work has commenced, the client will need to undertake regular checks to ensure that those relevant requirements are being met.
3. Extent of the client’s duties
It is also worth noting the extent of the client’s BRA duties. The obligation in most cases is to ensure. There is therefore no ambiguity in what must be achieved. In some cases, the obligation to ensure is tempered by all reasonable steps, but not in every case. A failure to meet the duty will constitute a breach of the Building Regulations. This of course gives building control and the BSR (where the project is an HRB) a wide range of possible parties against whom enforcement action might be taken, including the client, where it is apparent a project has not met one or more of the relevant requirements.
Regulation 3 of BRA requires the client to ensure that the suitable arrangements are maintained and reviewed throughout the project. To avoid any potential breach of the BRA, it will be necessary for a client, having appointed the principal designer and principal contractor, to undertake the following steps:
(a) To ensure that both the principal designer and principal contractor have checked the designs such that they meet the relevant requirements; to avoid any possible issue, the consideration and approval of the designs in relation to the relevant requirements must be documented and kept on the client’s file.
(b) During the construction phase, the client will need to make sure its team (whether that be the contract administrator, a clerk of works or a specialist engineer) undertakes regular checks of the building work to make sure that the relevant requirements are being met. Again, this should be fully documented. Where the principal contractor is also the principal designer, there should be a contractual obligation to produce regular documented reports of the workmanship and build quality throughout the construction phase.
(c) During the construction phase, the client will need to consider whether the information it is receiving is sufficient to give it certainty that the relevant requirements are being met. Where this is not the case, the changes it implements to achieve that certainty should be documented.
4. Other suitable arrangements
There are other duties that must also be complied with. The client must provide “building information” to every designer and contractor on the project. Building information is defined in Regulation 11Q.:
“building information” means information in the client’s possession or which is reasonably obtainable by or on behalf of the client, which is relevant to the building work or the design work, including information about— (a) the work; (b) planning and management of the project; (c) issues relating to compliance with any relevant requirement and how they were addressed;
The client must co-operate with the other duty holders and project team members. Where there is more than one client (such as in a joint venture arrangement), the clients must agree which party is going to take on and discharge the client duties. That decision should be documented with the reasons for the decision clearly set out.
5. Client notice duties
The Building Regulations are also updated with more detailed notice requirements. A person that carries out building work is already required, not more than 5 days after work has been completed, to give the local authority a notice that work is completed. However, BRA requires additional details to be included in these notices, which include:
a) the name, address, telephone number and email address of the client;
b) the name, address, telephone number and email address of the principal contractor and principal designer;
c) a statement that the building work is complete;
d) a statement, signed by the client, confirming that, to the best of the client’s knowledge, the work complies with all Building Regulations;
e) a statement given by each principal contractor and each principal designer for the works which includes:
i. their name;
ii. their addresses;
iii. their telephone number;
iv. where available, their email address;
v. the dates of their appointment; and
vi. confirmation that they have fulfilled their respective duties as principal contractor and principal designer under Parts 2A of the Building Regulations.
Similarly, the Building Regulations already require the person carrying out work to give the local authority at least 5 days’ notice before a building is occupied. However, BRA requires further details to be included in this notice, including:
a) the name, address, telephone number and email address of the client;
b) the name, address, telephone number and email address of the principal contractor and principal designer;
c) the date when the building, or any part of it is to be occupied;
d) a statement, signed by the client, confirming that to the best of their knowledge:
i. the fire safety information has been provided to the Responsible Person under the RRFO no later than the completion of the work or date of occupation, whichever is earlier (Regulation 38 of the Building Regulations); and
ii. the Building Regulations requirements relating to fire safety, including means of warning and escape, internal fire spread, external fire spread and access to facilities for the fire services (Part B of Schedule 1) are currently complied with in relation to the parts of the building that are to be occupied.
e) a statement given by each principal contractor and principal designer which includes:
i. their name:
ii. their address:
iii. their telephone number;
iv. where available, their email address;
v. the dates of their appointment; and
vi. confirmation that they have fulfilled their respective duties as principal contractor and principal designer under Parts 2A of the Building Regulations: Dutyholders and competence.
Once building work is complete, a completion certificate application must be made by the person carrying out the work. A residential building, or part of a residential building, cannot be occupied until the local authority has issued a completion certificate and it is an offence under the BSA to occupy an HRB before it is received.
A completion certificate will not be provided without the above notices; therefore, it is now even more important to keep on top of principal designers and contractors so that their appropriate signed statements are included within applications. Otherwise, clients risk failing to comply with the Building Regulations notice requirements and not being able to occupy their buildings.
It should also be noted that, in relation to HRBs, the completion certificate application process has been expanded under other new regulations laid by DLUHC as part of the implementation of the wider framework: see Chapters 7–11.
6. Specific client duties in relation to HRBs
Where designers and contractors will be undertaking work on an HRB, the client must make them aware of that and point out the requirements for HRB work. This will be of particular relevance where the building work is being undertaken to an existing HRB or where the client is employing a pool of designers and contractors on a traditional basis.
Where designers and contractors will be undertaking work on an HRB, the client must make them aware of that and point out the requirements for HRB work. This will be of particular relevance where the building work is being undertaken to an existing HRB or where the client is employing a pool of designers and contractors on a traditional basis.
7. Appointing the principal designer and principal contractor
The client must appoint the designer who has overall control over the design work as the principal designer. Similarly, the client must appoint the contractor who has overall control of the building work as principal contractor. That appointment is deemed to have taken place for the purposes of the BRA where the principal designer and principal contractor are the same people that have been appointed in writing under CDM. However, notwithstanding this deeming provision, it will always be sensible to appoint the principal designer and principal contractor as both in writing to avoid any possible ambiguity.
Prior to appointments being made, the client must keep a written record of the steps it has taken to satisfy itself that its principal designer and principal contractor:
1. are competent to carry out the work being asked of them in accordance with the relevant requirements (which we look at in detail below); and
2. are able to plan, manage and monitor the design and/or building work.
Where the principal designer and principal contractor are being appointed in relation to work on an HRB, there are several additional requirements that must be met and documented in writing. These include: -
1. asking whether a ‘serious sanction’ has occurred in the past five years – a ‘serious sanction’ includes a failure to comply with the functional requirements of Part A (structure) and Part B (fire) of the Building Regulations, the issuing of a stop notice in respect of any works, a conviction for any offence under the Building Act, the BSA the RRFO or the HSWA, and it also includes any adverse finding made by any inquiry undertaken under the Inquiries Act; and
2. considering any information available to it concerning any misconduct.
If the client is not satisfied that the principal designer/ principal contractor has met the necessary requirements, the proposed principal designer/ principal contractor must not be appointed. In relation to this aspect of the regulations, it goes without saying that it will be necessary for the client to produce a detailed and comprehensive series of questions as part of any procurement process. Ultimately, if questions are asked a later date, the client will need to be able to point to a written record demonstrating that it properly investigated, not only competence, but the other requirements also.
Where there is more than one designer in control of different aspects of the design, then they must agree between themselves who will take on the role of principal designer. It will therefore be necessary for the client to have had those discussions and to have identified the principal designer as soon as possible at the outset of a project.
In addition, while the clear intention is that the principal designer and principal contractor will, for the most part, be the same persons as those appointed under CDM, that will not always be the case: in each case, the client’s approach will be to appoint parties based on who has overall control of the design and/or the building work, as the case may be.
The appointments must also be made prior to the start of any building work. Where work involves an HRB, the appointment must be made before the application for building control approval is made to the Regulator. The purpose of this is to ensure that the principal designer and principal contractor have reviewed the designs alongside the client and each of them are satisfied the designs meet the relevant requirements.
Finally, if the client does not appoint a principal designer or principal contractor for the purposes of the BRA, then it will be deemed to have assumed the duties itself. Where either the principal designer or principal contractor changes during a project, its replacement must be appointed in writing.
8. General duties of designers and contractors
Having considered the duties of the client, let us now turn to the duties owed by designers, contractors, principal designers, and principal contractors.
There are general duties that apply to both designers and contractors, along with specific duties that apply to each. As for the general duties, any person carrying out design or construction work must:
(a) Whether by themselves or with the use of sub-contractors, plan, monitor and manage the work so that it complies with the relevant requirements. This means that, during both the design and construction phases, each designer and contractor must check its own work (including work being carried out on its behalf by a sub-contractor) to make sure it meets the relevant requirements.
(b) A designer must take all reasonable steps to ensure its designs are built. This means the designer will have to take reasonable steps to satisfy itself that the building work being undertaken reflects the designs and in doing so complies with the relevant requirements.
(c) Any contractor or designer must cooperate with the client, any designer, and any contractor to the extent necessary to ensure the design or building work is in compliance with the relevant requirements.
The clear focus of the general duties is on making sure everyone in the project team complies with the relevant requirements and that both the designs and the building work meet those functional requirements of the Building Regulations included within the relevant requirements.
The duties impose obligations on each dutyholder to take steps to ensure the work they are carrying out meets those relevant requirements. So, where the designer requires confirmation from a contractor that the building work is in accordance with any design, that information will have to be provided. Where a client requires confirmation from a designer that the design meets the relevant requirements, that information will have to be provided also.
9. Specific duties imposed on all designers and contractors
In addition to the general duties above, both designers and contractor have specific duties. These are:
(a) neither a designer nor contractor should start any work until they are satisfied the client is aware of its duties as a client.
(b) A designer must:
i. Take all reasonable steps to ensure that, if the building work was undertaken in accordance with the designs, that work would meet the relevant requirements. In other words, the designer must check its designs to make sure they will meet the relevant requirements when constructed. Where there is any uncertainty or lack of necessary detail in relation to the relevant requirements, the designs will need to be amended or supplemented with additional information.
ii. The designs must be clear and contain sufficient information about the design to assist the client, other designers, and contractors in complying with the relevant requirements. This means that nothing should be left to chance and designers must not assume that elements of the design, relating to the relevant requirements, will simply be assumed, or picked up by others.
iii. Where a designer is only carrying out one aspect of the design for the building work, that designer must consider other designs that directly relate to that building work and report any concerns about compliance with the relevant requirements to the principal designer. This obliges a designer to not only consider its own designs, but those undertaken by others to which its design relates, and report any suspected non-compliances: designers, therefore, must check other designers’ related design work.
(c) The contractor must:
i. Ensure that the building work they carry out is in compliance with all relevant requirements.
ii. Provide each worker under their control with adequate supervision, instruction, and information to ensure that the building work complies with the relevant requirements. This is designed to end the problem of unsupervised building work and work being undertaken without those undertaking it being aware of the Part A and Part B (in particular) requirements.
iii. The contractor must take all reasonable steps to provide sufficient information to the client, designers, and other contractors to show its work complies with the relevant requirements.
iv. Where a contractor is only carrying out one aspect of the building work, that contractor must consider other building work that directly relates to that building work and report any concerns about compliance with the relevant requirements to the principal contractor. Contractors must therefore check other contractors’ related building work.
10. Specific duties imposed on principal designers and contractors
In addition to the general duties and the specific duties owed by all designers and contractors, there are further duties that apply only to the principal designer, as the party in control of the design work, and principal contractor as the party on control of the building work.
Principal designers
(a) Principal designers must take all reasonable steps to ensure that:
i. they plan, manage and monitor the work during the design phase;
ii. they co-ordinate the design work so that all reasonable steps are taken to ensure that the designs of each designer, when constructed, will result in the building meeting the relevant requirements;
iii. designers and those involved in design work co-operate with the principal designer, the principal contractor, and the client; and
iv. designers comply with their general and specific duties.
(b) The principal designer has an absolute obligation to liaise with the principal contractor and share any information relevant to the planning, managing, and monitoring of the building work. It must also work with the principal contractor to co-ordinate the design and work phases in such a way that ensures compliance with the relevant requirements.
(c) The principal designer must assist the client in providing any design information to other designers and contractors when asked to do so.
(d) The principal designer also has an absolute obligation to take into account any comments received by the principal contractor in relation to compliance with the relevant requirements.
It is quite clear from these requirements that the principal designer must always focus on each piece of design being undertaken, to listen to what others are saying and to provide information and confirmation about the designs’ ability to meet the relevant requirements, when asked. Ultimately, the principal designer must check to make sure that the designs meet the relevant requirements and are co-ordinated in such a way that construction of the building in accordance with the designs will result in a building that meets the relevant requirements.
Principal contractors
e) Principal contractors must take all reasonable steps to ensure that:
i. they plan manage and monitor the work during the construction phase;
ii. they co-ordinate the building work so that all reasonable steps are taken to ensure it meets the relevant requirements;
iii. contractors, and those involved in building work, co-operate with the principal contractor, the principal designer, and the client; and
iv. contractors comply with their general and specific duties.
(f) The principal contractor has an absolute obligation to liaise with the principal designer and share any information relevant to the planning, managing, and monitoring of the design work. It must also work with the principal designer to co-ordinate the design and work phases in such a way that ensures compliance with the relevant requirements.
(g) The principal contractors must assist the client in providing any building information to other designers and contractors when asked to do so.
(h) The principal contractor also has an absolute obligation to take into account any comments received by the principal designer in relation to compliance with the relevant requirements.
The principal contractor must take steps to ensure the building work is being undertaken such that it will meet the relevant requirements. It must keep a careful watch over its supply chain. It must listen to what others are saying and provide information and confirmation about whether the building works meet the relevant requirements when asked. Ultimately, it must check to ensure the building work is being co-ordinated and undertaken in such a way that the construction of the building will meet the relevant requirements.
Competence
Competence is at the very core of the BRA, and an ability to demonstrate that competence has been fully considered, will be a necessary part of meeting the new duties.
These obligations apply to the client when appointing any designer or contractor, including the principal designer and principal contractor. They also apply to the project team as a whole, including the appointment of any sub-designer or sub-contractor by the principal designer or principal contractor.
So, what needs to be done when assessing competence? First and foremost:
1. Where the designer or contractor, including the principal designer and principal contractor, is an organisation such as a partnership or limited liability company, they should only be appointed if they have the organisational capability to meet the relevant requirements in relation to any design or construction work.
2. Where the designer or contractor is an individual person, they must have the skills, knowledge, experience, and behaviours necessary to meet the relevant requirements in relation to any design or construction work.
Competence needs to be demonstrable, both in relation to an organisation as well as an individual, and it should be objectively quantifiable by reference to a clear set of criteria. An organisation will need to demonstrate that it has the structures and expertise in place to plan and undertake the design and/or building work so that the relevant requirements will be met. For an individual, it will come down to an assessment of their skills, knowledge experience and behaviours in order to assess competency for any piece of design or building work.
There are additional specific competence requirements that must be met if appointing a principal designer or principal contractor. Where the principal designer or principal contractor is an individual, they must designate an individual who has been given the task of managing its functions as principal designer or principal contractor. That person must be competent, and, prior to their appointment, both the principal designer and principal contractor must satisfy themselves that the person has the skills, knowledge, experience and behaviours necessary to satisfy the role.
Getting to grips with the new requirements
The new dutyholder regime is detailed, complex and administratively fiddly as the provisions are set out in more than one set of regulations. Negotiating the new requirements will be tricky, especially given they are still in their infancy. In addition, we await the launch of the JCT’s new suite. Contractual amendments will need to be made to suites of agreements and the new dutyholders will need to have strategies in place for documenting and evidencing the steps they take.
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Copyright in this publication belongs to Devonshires Solicitors LLP. The content of this publication is current as at the time of publication. It is intended as guide to the subject matter and not as legal advice, and it should not be construed as the giving of legal advice. For further information, please email one of the contacts named at the end of this publication.