Following the Grenfell Tower fire tragedy in 2017 and the Hackitt Review in May 2018 ("Building a Safer Future"), there was a drive in the construction industry to enhance levels of competence focusing on approved inspectors, consultants and contractors, which were previously found to be deficient. The Architects' body, RIBA, launched a course for principal designers to gain accreditation in this field and other consultants are likely to follow suit relying on their professional bodies for guidance on improving competency in their specialisms.
To raise the profile of competency and embed it in the process of applying for Building Regulations' approval, the introduction of a new gateway regime for Higher Risk Buildings ("HRB") was implemented via the Building Safety Act. The Gateway 2 application (pre-construction) requires applicants, ie clients, to submit a competency declaration stating that they have conducted checks against their contractor and design team and are confident they have the skills, knowledge and experience to perform their role as duty holders under the amended Building Regulations 2010. Part of these checks entail carrying out audits against these individuals or firms to satisfy themselves of their competence or organisational capability to undertake the type of work, complying with the Building Regulations. Certain consultants, such as Allies and Morrison, have published their competency statement on their website.
New industry bodies were established to monitor competence as well as the publication of updated British Standards to address competency. One of these is PAS 8671: 2022 – framework for competence of individual Principal Designers (PDs) which sets out the threshold of competence that individuals operating as PDs for the purposes of the Building Regulations (BR PD) are expected to meet. Individuals are advised to consider obtaining accredited independent assessment and certification aligned with PAS 8671 to verify their competence.
However, it has not been a smooth path to achieving formal competence. Certain architectural practices have encountered resistance among staff to take on the role as failure to comply with the Building Regulations etc. (Amendment)(England) Regulations 2023 could constitute a criminal offence and lead to significant sanctions including unlimited fines and up to two years' imprisonment for individuals. Certain staff are so concerned about the risks and misunderstand them that they even refuse to undergo training or put themselves forward once qualified “I don’t want to take the BSA training, I don’t want to go to jail!”, some have said.
Others fear losing the ability to perform the role or simply losing out to competition so are familiarising themselves with the BR PD role and undergoing formal training to qualify. Among the various courses available and BR PD registers, are the ACA, APS, CIAT, and, of course, the RIBA Principal Designer course. The latter entails one or two-day courses resulting in an attendance certificate demonstrating competence to discharge the key role and aligns with PAS 8671.
Firms have also sought to supplement their skills' offering by seeking advice from former Approved Inspectors who may be appointed directly or as external consultants, to enhance their practices' BR PD capability. Whilst some architectural practices have chosen to buy in talent, others have subcontracted out the role but are concerned that longer term this could lead to a loss of expertise in this area with clients looking elsewhere in the market to fill this crucial position.
Clients competency audits typically entail issuing lengthy questionnaires covering everything from designers' various policies for change management, training, checking processes, technical review procedures, document management and the like. Firms have reported these audit questionnaires to be long, detailed and time consuming to complete. Over time though they may be more targeted as the industry gets comfortable with the role and what is expected from them.
For those architects who do not work in the residential space they have reported that distilling legislation for non-residential purposes has been a challenge and some of these practices have asked: “Why does this apply to us, we do not design HRBs?”, whilst most practices generally appreciate that ongoing training in this area is key to raising awareness and familiarising themselves with the requisite legislation but many are still, almost two years since the introduction of the regulations, in a transitional phase in their learning journey.
They are also realising that with the more onerous requirements of the Building Safety Act (particularly the gateways) and their BR PD role they and their clients are seeing inevitable programme extensions and fee increases if they undertake the function alongside their designer duties.
Other risks that have been identified relate to refurbishment of mixed-use premises where commercial spaces sharing common areas with residential premises can trigger the onerous Gateway regime.
Andrew Dean, director at Allies and Morrison mentioned the need for clearer guidance when he spoke to me in early June:
"One very difficult subject is the question of whether a 'structure' is 'attached' or not to another 'structure'. Where a structure qualifying as an HRB is attached to a structure that does not qualify as an HRB they become a single 'building' and are therefore both subject to the HRB procedures. There's no definition of 'attached' in The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 - see Regulation 4(3). The guidance that goes alongside implies that this is simply physical attachment. It's clear that joined foundations constitute attachment, for example, but what about a roof flashing or cold water pipework running between the buildings? We understand from other architects that the test that the Regulator actually applies for attachment is: Are the structures constructed, operated and managed independently. The 'operated' and 'managed' is meant to relate to fire safety related issues only. This of course is much much more onerous than just physical attachment. To our knowledge, the Regulator has not put this in writing."
As well as mixed use buildings this can also affect hotels. Again, another area ripe for guidance and clearer regulation.
The industry is getting to grips with the front loading of design where it is required earlier in the process for HRBs projects than for a typical design and build procurement. Many are therefore seeing the design process brought forward to the PCSA stage where more contractor and subcontract design is required to provide sufficient design information for submission at Gateway 2 for regulator approval. Architects are finding that there is insufficient understanding of the process and procurement requirements from clients and project managers alike with the inevitable programme and cost consequences that result.
In terms of the Building Safety Act's impact on the industry and the design of buildings, this is still being felt and will, of course, take time to bed in but architects have encountered clients requesting that where buildings can be adjusted in terms of height, they should fall beneath the 18m requirement to avoid the gateway and building safety regulator processes.
For the BR PD role architects are often requesting separate appointments and around half the time manage to secure them on the RIBA standard form for Principal Designers. The rest of the time they grapple with bespoke appointments that are in many cases inappropriate with design and other obligations that are not part of the role.
The requirement to maintain professional indemnity insurance under appointments has typically increased to 15 years, whereas liability periods sometimes match this duration contractually or may remain at the usual 12 years except for statutory exceptions under the Defective Premises Act 1972 (as amended). Firms are also seeing their appointments become lengthier and more complicated due to the insertion of sometimes unnecessary Building Safety Act provisions, even where they do not operate in the residential space!
The experience with building safety regulators is somewhat common across the board in that Gateway 2 time periods are often extended from either 8/12 weeks to up to 48 weeks. Some have known Gateway 3 approvals pushed out from 8 weeks to 6 or 18 months at worst! The frustration in the industry tends to be that where Gateway 2 applications are rejected, little or no guidance is provided by the regulator and the concern is then whether to risk an appeal or restart the application with the compounded risk that it may be rejected again resulting in a circular situation with clients incurring even more fees adding to programme delays. There is clearly a need for increased and clearer guidance which many in the industry agree appears to be sorely absent.
Architects, AHMM have said: “The implementation of the Building Safety Act is clearly a huge change for the industry, in particular with regard to High-Risk Buildings. Architects are taking action and rising to the challenge, but additional guidance to provide clarity and consistency across the industry would be very much welcomed.”
However, in response, the CLC published guidance on Gateway 2 applications in July and the Government announced reforms over the summer to the BSR machinery including a new fast track process to unblock delays and accelerate applications.
Architects have also reported that the BSR portal can be clunky to use as individual PDFs need to be uploaded whereas operating in a common data environment may bring benefits.
Clearly, issues with the building safety regulator have been exposed in terms of being under-resourced and this has been identified in the government's Rapid Acceleration Plan and BSR reforms as an area that is being addressed. The government also aims to accelerate the process to gaining competency to allow buildings to be remediated sooner through providing consistent and measurable training programmes and plans to continue its work with the Construction Leadership Council to develop modular training.
Architects are also finding that the construction products regulations is another area of potential risk where some have struggled to obtain correct product information from manufacturers. The government's recent green paper on page 13 states "another critical gap lies in the availability and accessibility of product information".
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