Gemma Whittaker
Partner
Article
15
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.
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:
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:
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.
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:
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).
Specific duties are placed on each individual dutyholder, appropriate to their role.
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 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:
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:
'Competence' is broadly defined as a person:
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.
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:
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.
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