Building Blocks: Regulatory Updates to the Duties of Developers, Designers and Contractors and a New Building Control Process

The Building Regulations etc. (Amendment) (England) Regulations 2023/911

(the "Regulations") came into force on 1st October 2023. It is among the latest set of regulations brought in as a direct result of the government consultation in July 2022.

The Regulations introduce a new building control process and bring clarity to dutyholder roles. They also add a new definition of "commencement" with an automatic lapse of building control approval after three years from when the building control approval was granted.

New building control process

Applications for building control with full plans must now also detail whether the Regulatory Reform (Fire Safety) Order 2005 applies (or will apply after completion) as well as information on whether it will meet the definition of a higher-risk building.

Where a project contains both higher-risk and non-higher-risk building work, the client and the Building Safety Regulator may issue a joint notice to the local authority to allow the Building Safety Regulator to act as the building control authority across both works. (For more information on recent changes to the role of the Regulator, see our article on the subject).

What dutyholders need to know

As discussed in one of our earlier insights, a key intention of the government is to bring clarity to the roles of those who procure, plan, manage and undertake building work. This will help to promote a better building safety culture and ensure responsible parties are held to account.  

The Regulations set out each dutyholder's specific responsibilities and liabilities as well as prescribing a new competence requirement (as set out below).

Client

This is the person for whom the building work is done (often a developer or building owner). A client will need to have suitable arrangements for planning, managing and monitoring work. This includes:

• providing certain information to every designer and contractor on the project - including making them (as well as installers) aware if the work is in relation to a higher-risk building;
• making sure there is sufficient time and financial resource available so that the building work can be completed; and
• cooperating and sharing information with other dutyholders.

A client's obligations should be maintained and periodically reviewed throughout the project.

Designer

This is a person who carries out any design work or arranges or instructs someone under their control to carry out design work. A designer must:

• not start work until satisfied that the client is aware of the duties owed by the client for the building work to which the design relates;
• take all reasonable steps to ensure that the design work will comply with all relevant requirements;
• take all reasonable steps when providing a design to give sufficient information about the design, construction and maintenance of the building to assist the client and other dutyholders in complying with relevant regulations;
• consider other design work that directly relates to the building work and report non-compliance to the principal designer;
• advise the principal designer (where requested to do so) where its work relates to higher-risk buildings.

Principal Designer 

Where there is (or it is reasonably foreseeable that there may be) more than one contractor the client must appoint in writing a principal designer with control over the design work.  The principal designer must:

• not accept the appointment unless it is competent to do so;
• plan, manage and monitor the design work during the design phase;
• take all reasonable steps to:
  • coordinate matters relating to the design work to ensure that, if built, the building work to which the design relates will comply with the building regulations;
  • ensure that they, and all designers on the project, cooperate and communicate with the other dutyholders;
• liaise with the principal contractor and share information relevant to planning, management and monitoring of the building work;
• assist the client in providing information to other designers and contractors.

Contractor

This is defined as any person who carries out, manages or controls any building work. Contractors must:

• not start building work unless satisfied that the client is aware of the duties owed by the client under all relevant requirements;
• ensure all building work they carry out complies with all relevant requirements;
• provide each worker under their control with the appropriate supervision and instructions so the building work complies with all relevant requirements;
• take all reasonable steps to provide sufficient information about their building work to assist the other dutyholders;
• provide advice to the principal contractor (if requested) on whether any work is higher-risk building work.

Principal Contractor 

As with the principal designer, where there is more than one contractor on a project, the client must appoint a principal contractor to be in control of the building work. The principal contractor must:

• not accept the appointment unless they are competent;
• plan, manage and coordinate building work;
• coordinate matters relating to the building work to ensure it complies with building regulations;
• take all reasonable steps to ensure that all contractors cooperate, communicate and coordinate their work with the other dutyholders;
• liaise with the principal designer and share information relating to the planning, management and monitoring of the design or building work to ensure compliance with all relevant regulations.

Competence Requirements

Any person undertaking design work or building work will need to have the right competence (the necessary skills, knowledge, experience and behaviours) for the work they are to undertake.

When making appointments for design work or building work, those making the appointments should take all reasonable steps to ensure those they appoint are competent for the work they are to do, and those accepting the appointment should only undertake work within the limits of that competence.

Higher-Risk Buildings

Higher-risk buildings trigger additional requirements for dutyholders, as set out below.

Clients must:

• appoint a principal contractor and designer before submitting any building control approval application;
• keep a written record of steps taken to ensure when appointing a principal designer and principal contractor that they meet the competency requirements;
• ensure all designers/contractors are aware they are working on a higher-risk building and that they periodically review the design and building work included in the project.

Any other person making an appointment must:

• give the client a written record of steps taken to ensure that whoever they have appointed meets the competency requirements.

When is "commencement" and why does it matter?

Where previously the definition of the commencement of work had only been set out in guidance, the Regulations now clearly describe it according to the type of work.

• Complex buildings (defined as buildings that are either (i) constructed on the same foundation as any other building/structure, (ii) have more than one storey below ground, or (iii) used primarily as a public building with a capacity for over 100 visitors) – when the foundations supporting the building and the structure of the lowest level floor of that building are completed;
• Other buildings or horizontal extensions – when the sub-surface structure (including all foundations and basement level if there is one) and the ground floor structure of the building or extension are completed;

If work has not been commenced (according to the new definitions) within three years from the date that the building control approval was granted then any building control approval will lapse.

This assessment applies to each building individually. This means that where there are multiple buildings in a project if work on each of the specific buildings has not commenced within the three-year time limit the building control approval will lapse  – even if work on the rest of the site has commenced.

Will this apply to buildings where work has already started?

If works have begun before 1 October 2023 then this change will not apply. This exception also includes works where plans or a building notice are already with a local authority but will not cover building works where plans are rejected by the local authority.

This blog is part of a series published by Howard Kennedy LLP on the Building Safety Act. For more information, please contact Fiona Yeoh or Stuart Duffy. For other blogs, please click here.