As we reported on 17 August 2023, the Department for Levelling Up, Housing, and Communities (DLUHC) issued a suite of new regulations pursuant to the Building Safety Act 2022 (BSA).
This new legislation included the Building Regulations etc. (Amendment) (England) Regulations 2023 (BRAE Regulations), which come into force on 1 October 2023 – subject to certain transitional provisions, which we describe below.
These introduce amendments to the Building Regulations 2010 (the Building Regulations) – including the much-anticipated dutyholder and competence requirements, which are set out in the new Part 2A of the Building Regulations.
What is the new dutyholder regime, and to which projects does it apply?
The new dutyholder regime applies to all "building work" (as defined in the Building Regulations) in England, i.e. to any project that requires building regulations approval, with only limited exceptions for "exempt" work (as detailed in Regulation 9 and Schedule 2 of the Building Regulations) and minor works. The Welsh Government is expected to set out its own regime.
The new regime in Part 2A:
- creates roles for specified dutyholders during construction projects;
- sets out the duties that they must comply with;
- sets out the competence requirements for individuals and organisations who may hold those roles; and
- identifies an additional 'layer' of duties and roles that the dutyholders will have on any project involving higher-risk building work (which is any work in England for which the Building Safety Regulator (BSR) is the building control authority, i.e. in respect of buildings that are at least 18m in height or have at least seven storeys and contain at least two residential units, including care homes and hospitals during design and construction).
Who are the dutyholders?
The new roles will be familiar to those with knowledge of the Construction (Design and Management) Regulations 2015 (CDM Regulations) since they are broadly modelled on the CDM Regulations, which have been seen as a success in improving on-site health and safety. However, the new regime focuses on dutyholders' responsibility for ensuring that building works comply with Building Regulations (as opposed to on-site safety). The dutyholders identified in the new Part 2A are:
- The client – any person for whom a project is carried out. There is an exception for 'domestic clients' (any client for whom a project is being carried out which is not in the course or furtherance of that client's business). In such cases, the relevant duties are instead imposed upon the principal contractor (or sole contractor if there is only one contractor) or the principal designer. There may be more than one possible client in relation to any given project. If this is the case, the parties may agree in writing which of them will be treated as the 'sole' client for these purposes.
- Designers – any person (including a client, contractor or other person referred to in Part 2A) who, in the course of business (a) carries out any design work or (b) arranges for or instructs any person under their control to do any design work.
- Contractors – any person (including a client, but not a domestic client) who, in the course of a business, carries out, manages or controls any building work.
- Principal designer – a designer with control over the design works who is appointed to the role.
- Principal contractor – a contractor with control over the building work, who is appointed to the role.
Instead of appointing a principal designer or contractor, the client may certify in writing that the principal designer or contractor (as the case may be) under the CDM Regulations shall be treated as having been appointed. It remains to be seen how this will work in practice, as presumably, the principal designer and principal contractor must agree to take on these roles.
What are their duties?
Part 2A contains a set of general duties which apply to all dutyholders, as well as specific duties relevant to each particular role. The focus is on ensuring that the "relevant requirements" (which are defined within Part 2A by reference to certain specific provisions of the Building Regulations) are met. These general duties include:
- Planning, managing and monitoring: to ensure (or in the case of design work, to take all reasonable steps to ensure) that work is in compliance with the relevant requirements.
- Co-operation: a duty of co-operation amongst all dutyholders to ensure that building work complies with the relevant requirements.
- Considerations before making appointments: Before any person appoints another to carry out building work or design work (or to the role of principal designer or principal contractor), they must take "all reasonable steps" to satisfy themself that the person being appointed fulfils the competency requirements for their role (see further below), or that the person is in training with appropriate supervision arrangements in place.
Parties must only accept appointments to roles carrying out building or design work (or as principal designer or principal contractor) if they satisfy the relevant competence requirements (which we discuss further below).
What are the individual dutyholders' duties?
Specific duties are placed on each individual dutyholder, appropriate to their role.
- The client: seen as setting the tone and culture for a project and, therefore, responsible for ensuring that an environment is created which allows for compliance with Building Regulations. Key duties include to:
- make, maintain and review suitable arrangements for planning, managing and monitoring a project to ensure compliance with all relevant requirements;
- provide building information as soon as practicable to every designer and contractor on the project;
- cooperate with any other person working on (or in relation to) the project to enable others to fulfil their duties or functions under the Building Regulations.
- Principal designer: duties are focused on the planning, management and co-ordination of designs and building work to ensure (or to take all reasonable steps to ensure) that works carried out in accordance with designs will comply with relevant requirements.
- When the principal designer's appointment ends, no later than 28 days after the end of the appointment, the principal designer must give the client a document explaining the arrangements it put in place to fulfil its duties. Any replacement principal designer must review the arrangements the previous principal designer put in place for fulfilling the duties so that all reasonable steps are taken to ensure that the design is such that if the building work to which the design relates were built in accordance with that design, the building work would comply with the relevant requirements.
- Principal contractor: duties are focused on planning, management and co-ordination of building work to ensure compliance with relevant requirements.
- Again, when the principal contractor's appointment ends, no later than 28 days after the end of the appointment, the principal contractor must give the client a document explaining the arrangements it has put in place to fulfil the duties and any replacement principal contractor must review the arrangements the previous principal contractor put in place for fulfilling the duties to ensure that the building work is in compliance with the relevant requirements.
- Other designers / contractors: also have a range of duties focussed on ensuring that building work that is completed to their design, or by them, will comply with relevant requirements
What are the additional duties for higher-risk building work?
As noted above, there is an additional 'layer' of duties and roles on any project involving higher-risk building work. For example, the person appointing the principal designer or principal contractor must ask whether a 'serious sanction' has occurred in relation to that person within five years prior to the date of the appointment and consider any information available relating to that person's misconduct. This includes keeping a record in writing of steps that it took to satisfy itself of competence and consider the additional information required in relation to 'serious sanctions'. A serious sanction includes:
- the issue of compliance notices and stop notices under the Building Regulations
- convictions under the Building Act 1984, The Health and Safety at Work etc. Act 1974, the BSA, and the Regulatory Reform (Fire Safety) Order 2005; and/or
- a report published by an inquiry finding that their action or inaction resulted in one or more deaths or was likely to have been a contravention of certain statutory requirements.
The client also has further duties under The Building (Higher Risk Buildings Procedures) (England) Regulations 2023 (legislation.gov.uk) (the HRB Procedures Regulations) that relate specifically to the dutyholder and competence regime, including providing:
- a 'competence declaration' to the BSR as part of its building control approval application, confirming it has complied with the duties to consider past misconduct and taken reasonable steps to satisfy itself as to the competence of appointees.
- a 'construction control plan' as part of the building control approval application and the application for a completion (or partial completion) certificate.
- a 'compliance declaration' by the principal contractor and principal designer as part of the application for a completion (or partial completion) certificate, confirming that they have fulfilled their duties under Part 2A of the Building Regulations.
Under the HRB Procedures Regulations, the client is ultimately responsible for satisfying most of the requirements of the new higher-risk building regime.
The principal contractor and principal designer also have certain additional roles specified within the HRB Procedures Regulations, including:
- ensuring designs for the building work produced before a building control approval application is submitted are provided to the client so that the client can include them in the 'golden thread'.
- establishing (and then following and maintaining) a mandatory occurrence reporting system for safety occurrences.
- on completion of the building works, they should provide a statement to the local authority (or, for higher-risk buildings, a 'compliance declaration' to the BSR as part of the application for a completion (or partial completion) certificate confirming that they have fulfilled their duties.
What are the competence requirements?
'Competence' is broadly defined as a person:
- where they are an individual, having the skills, knowledge and behaviours necessary; or
- where they are not an individual, having the organisational capability to carry out their particular role.
Where a principal designer or principal contractor is not an individual, it must designate an individual who manages its functions. Before appointing the designated individual, the principal designer/principal contractor must take all reasonable steps to satisfy itself that the individual has the skills, knowledge, experience and behaviours necessary to manage the function of a principal designer or principal contractor (as applicable) in such a way as to ensure that they will fulfil their duties.
There is an allowance for individuals in training, so long as they are appropriately supervised.
Whilst the BRAE Regulations do include some guidance on the meaning of "necessary behaviours" and "organisational capability", they do not specify the skills, knowledge and behaviours required for any particular role. The BSR has established an Industry Competence Committee, which will provide guidance to facilitate an improvement of competence across industry. In the meantime, the British Standards Institution has also published Publicly Available Specifications (PAS) 8671:2022 and 8672:2022, which set out a framework for the competence of individual Principal Designers and Principal Contractors respectively. These document the expected skills, knowledge, experience and behaviours, with additional competencies for higher-risk buildings.
Are there any transitional arrangements?
The BRAE Regulations (and hence the new dutyholder and competence requirements) come into force on 1 October 2023. There are transitional provisions which mean that broadly speaking, the regime will apply to works which commence on or after 1st October 2023 unless:
- Plans were deposited with the local authority or a building notice given to the local authority prior to 1st October 2023 (as long as the plans are not subsequently rejected); and
- Works then commence before 6th April 2024.
In relation to higher-risk buildings, the extent to which these transitional provisions apply is governed by the HRB Procedures Regulations.
Clients procuring building works will need to review their project arrangements and procurement processes to ensure that they are suitable to enable compliance under the new regime. Where this involves higher-risk building work, the arrangements and processes need to consider the additional scrutiny such projects are likely to be under and the requirement for those involved in the project to be competent to carry out such work. This will include checking that they have appropriate and relevant previous experience. Clients need to ensure that they are making appropriate appointments and have pre-qualification and tender processes which reflect the increased focus on competence. They also need to ensure that they are documenting the steps they are taking to do this.
Other dutyholders need to ensure that their internal processes are sufficient to ensure not only that third party appointees are competent, but also that individuals (including employees) carrying out work on their behalf either have the relevant competence or are in training and appropriately supervised. Again, documentary evidence of the organisational arrangements in place to ensure this will be important.
If you have any questions about this article, please contact Gemma Whittaker.