Client responsibilities under the Building Regulations Dutyholder Regime — one year on

The October 2023’s amendments to the Building Regulations — imaginatively named ‘The Building Regulations etc (Amendment) (England) Regulations 2023’ — introduced a new dutyholder regime designed to make those involved in building design and construction more accountable for compliance with the Building Regulations.

A key takeaway from both phases of the Hackett Report is a perceived lack of competence in the building and design professions when it comes to matters of safety and compliance with the Building Regulations. The Report didn’t simply take aim at designers and contractors but outlined that clients must take more responsibility and accountability for their projects. 

Here, Eddy Davies and Adam Jason provide a reminder of client responsibilities under the Building Regulations and examine how the Building Regulations are working in practice a year after their implementation.

What housing providers need to know

As a ‘Client’, it’s your responsibility to make suitable arrangements for planning, managing and monitoring your project to ensure compliance with the Building Regulations. 

This means that you need to:

• ensure the design complies with the Building Regulations
• ensure the building work complies with the Building Regulations
• enable co-operation between designers and contractors to ensure compliance with the Building Regulations
• periodically review design and building work to identify whether it’s higher-risk building work.

You must review your arrangements throughout the project and provide building information as soon as practicable to every designer and contractor on the project. Importantly, you have a duty to co-operate with any other person working on a project to enable them to comply with their own duties or functions under the Building Regulations. 

While every designer and contractor involved in a project has its own statutory duties, you must appoint a principal designer (PD) to control the design work and a principal contactor (PC) to control the building works. 

Specific statutory duties are attributable to each of these roles. Where there’s only one designer and/or contractor, those parties automatically assume the principal roles. Where there’s more than one contractor — which is the rule, rather than the exception for capital projects — the PD and PC appointments must be made before construction work begins unless the project relates to a higher risk building, in which case this is required before the building control approval is submitted to the Regulator (considerations relating to HRBs are outside the scope of this article). Notice must be given to Building Control where there’s a change of Client, PD or PC. 

Designer & PD duties 

Designers must take all reasonable steps to ensure that their design work is produced, planned, managed and monitored so that design, if built to, satisfies the Building Regulations. The PD has additional duties to co-ordinate design matters accordingly. It should be noted that the phrase “all reasonable steps” means that this duty doesn’t imply a fitness for obligation, so professional indemnity insurance coverage shouldn’t be an issue. 

Additional PD duties include taking all reasonable steps to ensure that all designers comply with their own statutory duties as well as co-operating with the client, PD and PC. All reasonable steps are to be taken to provide sufficient information about the design, construction and maintenance of the building to assist the clients, other designers and contractors. Designers must also notify the Client of any concerns around other designers’ work.

Contractor & PC duties

Each contractor must ensure that their work is planned, carried out, managed and monitored to comply with the Building Regulations. The PC must take all reasonable steps to ensure co-operation between the construction team and that all work is co-ordinated to comply with the Building Regulations as well as ensure that all other contractors comply with the Building Regulations. 

Contractors must provide each worker under their control with appropriate supervision, instructions and information to ensure compliance. All contractors must take all reasonable steps to provide sufficient information about the design, construction and maintenance of the building to assist the clients, designers and other contractors to comply with the Building Regulations, while the PC must liaise with the PD to plan, manage, monitor and co-ordinate the building work and design work to ensure compliance. All contractors must notify the PC if they consider other contractors’ work to be non-compliant. 

A key facet of the new dutyholder regime is the introduction of general competency requirements for each contractor and designer, as well as enhanced competency requirements for the PC and PD. Before permitting any person to carry out building or design work, as the client you must take all reasonable steps to satisfy yourself that the proposed contractor or designer is ‘competent’ and that such a person is able to fulfil the general duties of the contractor or designer as applicable.

Where the person carrying out the works is an individual, that person must have the skills, knowledge, experience and behaviours to carry out any building work and produce any designs in accordance with the Building Regulations. Where the person also assumes one of those principal roles, they must also have the skills, knowledge, experience and behaviours necessary to satisfy the statutory duties for those roles. If the relevant party isn’t an individual but is an organisation (which will likely be the case), the requirement is for the organisation to have the organisational capability to ensure that those who are carrying out the relevant design or building work comply with these competency requirements. Organisation capability means having the appropriate management policies, procedures and systems in place. 

In practice, this means that a contractor or design practice is able to obtain third-party assistance in discharging these statutory duties. This may mean that D&B contractors and architects look to sub-contract various tasks to specialists with a superior knowledge of the Building Regulations in a very similar way to which compliance with the CDM Regulations has been managed by the industry since 2015. 

Dutyholder regime — one year on

It’s fair to say that there was a significant amount of nervousness in the industry on the introduction of the dutyholder regime, as D&B contractors and design practices took time to understand the implications of the new regime. 

Parties looking to equate the PD and PC roles under the CDM Regulations with the new Building Regulations roles was common at first. While it’s possible for the same parties to undertake roles under both sets of regulations — and the Building Regulations expressly envisage this — the roles aren’t the same and clients will be exposed to statutory liability if the appointed Building Regulations PD isn’t competent to fulfil that role. 

In fact, had the industry long ago approached the CDM Regulations 2015 as statute intended with the architect or D&B contractor performing the role of principal designer under the CDM Regulations — rather than a client appointing a defunct CDM co-ordinator into such roles — the Building Regulations dutyholder regime wouldn’t have created the same level of nervousness. RICS is completely correct when it explains that the fundamental principles of the PD role are no different to those of a typical lead designer and Dieter Bentley-Gockman, author of the RIBA’s Principal Designer’s Guide, says it best: “I’m not sure why some architects and designers are nervous about doing this just because it’s in the context of Building Regulations, because it’s something traditionally we’ve always done.”

Fortuitously, the ability of contractors and designers to demonstrate competency and compliance with the Building Regulations through organisational capability and sub-contracting various services to assist in discharging the statutory duties — rather than needing the skills, knowledge and experience in-house — has been crucial in enabling the industry to overcome any capability challenges.

We’ve seen parties seek to place the PD role post-contract on a retained consultant. This, in our view, isn’t only a potential breach of the Building Regulations (because we question how a retained architect can control the design under a D&B contract) but also opens up the client to time and money claims regarding design development (which could also affect the contractor’s liability under the contract for defective work). 

The key for any client is understanding which individual or firm controls the design of the project and appointing them as PD appropriately. We’d expect that in the vast majority of instances this would be the architect. If the proposed architect is uncomfortable with assuming the appointment of the PD, it would be prudent to re-assess whether that architect has the competency to be appointed as PD or even as a designer, bearing in mind the client duties under the Building Regulations. 

If the project is to be procured under a design and build structure, the D&B contractor will ordinarily assume both the PD and PC roles post-contract because it’s responsible for controlling the design once appointed. 

So, the rule of thumb for who should be PD under D&B contracts is:

• Pre-contract PD — architect.
• Post Contract PD — D&B contractor.

Talk to us

With dedicated construction, housing and building safety teams, we handle the full range of matters for commercial real estate developers, housebuilders, local authorities and funders.

Talk to us by giving us a call, sending us an email or completing our contact form below.