Building Safety Act: The Building Regulations Dutyholder Regime – not only for Higher-Risk Buildings!

The introduction of the Building Safety Act 2022 (“BSA”) marked a seismic shift in the construction industry. The BSA was introduced in response to the Grenfell tower tragedy and represents a new approach to building safety in England. Much of the commentary from the industry has focused on Higher-Risk Buildings (“HRBs”); in simple terms buildings which are over 18 metres in height or with more than seven storeys, and which contain at least two residential units. One of the common misconceptions is that the BSA only applies to HRBs. However, as part of the reforms, the BSA introduced a dutyholder regime that applies to all construction projects which require building regulations approval, whether the building is residential, commercial or a HRB, subject to narrow exemptions.

What is the dutyholder regime?

The dutyholder regime is intended to promote the co-ordination of design and building work by imposing new obligations and responsibilities onto the Client, the Principal Designer and Principal Contractor to ensure compliance with building regulations. Whilst those familiar with the Construction (Design and Management) Regulations 2015 (“CDM”) will recognise these roles, it is important to appreciate that although the roles have the same name, the roles under building regulations are distinct from those under CDM. The Building Regulations etc (Amendment) (England) Regulations 2023 amend the Building Regulations 2010 to provide for the Building Regulations dutyholder roles and obligations.

Who are the main dutyholders?

Client:

The key duties of a Client include:

1. appointing a Principal Designer and a Principal Contractor;
2. making suitable arrangements for planning, managing and monitoring the project;
3. providing building information to every designer and contractor on the project; and
4. checking the competence of the entities it proposes to appoint, including the Principal Designer and Principal Contractor.

The Client has additional duties for HRB works and is required to keep written records of the steps it took to satisfy itself that the Principal Designer and Principal Contractor meet the relevant competency requirements. Although this is not a requirement for non-HRB works, it will be prudent for a client to maintain such records.

Principal Designer and Principal Contractor:

Where there is more than one contractor working on the project the Client must appoint a Principal Contractor and Principal Designer. Where there is only one contractor working on a project:

• the contractor is required to carry out the role of Principal Contractor; and
• if there is only one designer that designer must act as the Principal Designer. If there is more than one designer, the designers must agree in writing as to which designer will undertake the role of Principal Designer.

The key duties of the Principal Designer include to:

• plan, manage and monitor the design work during the design stage of a project and co-ordinate the works of all designers to ensure that the design is in accordance with relevant requirements; and
• liaise, and share relevant information with, the Principal Contractor.

The key duties of the Principal Contractor include to:

• plan, manage and monitor building work during the construction phase and co-ordinate building work to ensure it complies with all relevant requirements; and
• share information with the Principal Designer on the planning and management of design work and co-ordinate the design and building work to ensure compliance with relevant requirements.

A Principal Designer and Principal Contractor must be appointed prior to the commencement of the construction phase of the project, and for an HRB the appointments must be made prior to making an application for building control approval to the Building Safety Regulator.

If a commercial client fails to appoint a Principal Contractor or Principal Designer, or the appointment ends before the end of the project, the client is required to fulfil the duties of the Principal Designer or Principal Contractor until it makes an appointment. For domestic clients, the duties will pass to the designer and contractor most in control of these phases.

 What are the competency requirements for Building Regulations dutyholders?

An overriding objective of the BSA is to promote competence within the construction industry. The Regulations require the Client to check that the Principal Designer and Principal Contractor are ‘competent’ to carry out design work or building work, respectively.

Where the dutyholder is an individual, the individual is required to have the skills, knowledge, experience and behaviours necessary to fulfil the relevant duties. Where the dutyholder is not an individual, the dutyholder is required to have the organisational capability to fulfil the relevant duties.

The competency requirements for the Principal Designer are set out in the Regulations and supported by PAS 8671, which provides guidance on the competency requirements. Broadly, such requirements include, but are not limited to:

• an understanding of the law as it relates to its role and competency requirements as set out in building regulations;
• managing design work compliance; and
• understanding technical guidance, codes of practice and standards to assess and challenge the design team on design compliance.

The competency requirements for the Principal Contractor are set out in the Regulations and supported by PAS 8672. Broadly, such requirements include, but are not limited to:

• having the ability to understand applicable legislation and recognise obligations regarding building safety;
• managing building work, including having knowledge of risks and how to mitigate them;
• managing construction processes and production; and
• managing change control and the control of quality of building work.

Conclusion:

The introduction of the Building Regulations dutyholder regime and the new duties imposed on a Client, Principal Designer and Principal Contractor should result in improvements in the procurement process through increased co-ordination and promote building safety across the whole life of a project.

Developers and employers of all projects must evaluate whether the Building Regulations dutyholder regime applies to the works and if so, ensure that necessary steps are taken to comply with such duties. Should you require any assistance in understanding the Building Regulations dutyholder regime and any obligations you may have, please contact our Construction team.

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