The new dutyholder regime for the construction of buildings in England

The Building Regulations etc (Amendment) (England) Regulations 2023 were published in August 2023 as part of the suite of new regulations connected with the Building Safety Act 2022. Unlike some of the other regulations published (which are the subject of a separate Insight), they apply to all building projects, not just higher-risk buildings (HRBs) – albeit there are certain specific provisions which relate only to HRBs.

The regulations introduce amendments to the Building Regulations 2010. What is the new dutyholder regime and what does it mean for those developing building projects in England?

Those familiar with the Construction (Design and Management) Regulations 2015 (CDM regulations) will note a number of similarities between its dutyholder regime and the dutyholder regime under these regulations. 

Transitional arrangements

The regulations come into effect on 1 October 2023. However, there is a transitional regime for certain projects where either (i) "building work" has started before 1 October 2023 or (ii) plans were deposited with a local authority or a building notice has been given to a local authority before 1 October 2023. A number of the provisions, including those relating to the new dutyholder regime, do not apply to a project which benefits from the transitional arrangements.

However, even where plans are deposited or a building notice has been given, a project will not benefit from the transitional arrangements unless building work on the project has started before 6 April 2024.

Client duties

A client (for the purposes of this Insight we are not considering "domestic clients") will be the person for whom the project is carried out.

In many projects there could be more than one entity which will satisfy that definition and the regulations allow for the clients to agree between themselves who will be the client for the purposes of the Building Regulations, much in the way that the CDM Regulations do. Also like the CDM Regulations, there are certain provisions that will apply to all clients, including the obligation to provide information in relation to the building and the obligation to co-operate with others working on a project.

The client must make suitable arrangements to ensure that the design work is carried out such that the corresponding building work would comply with "relevant requirements", and to ensure that the building work itself is carried out in accordance with "relevant requirements". The client must also enable the designers and contractors to co-operate with each other to ensure compliance with "relevant requirements". These arrangements must be maintained and reviewed throughout a project.

The client also needs to provide building information to every designer and contractor on a project. There are further obligations in relation to HRBs which oblige the client to ensure that all designers and contractors are aware that a project involves HRB work and the nature of that work.

The Principal Contractor and Principal Designer

The regulations introduce new parallel duty holder roles specifically relating to the Building Regulations and make it clear that it is possible (but not mandatory) that the roles under the Building Regulations can be performed by the same parties who perform the roles under the CDM Regulations.

The appointments must be made by the client whenever there is more than one contractor working on a project. If the same entities who perform the role under the CDM Regulations are also being appointed for the purposes of the Building Regulations, this must be confirmed in writing.

The principal designer is responsible for planning, managing and monitoring the design work during the design phase to ensure that work is in compliance with Building Regulations. The clear expectation is that the principal designer will in fact be a "designer", which has not always been the case with the principal designer appointed under the CDM Regulations. The principal designer must co-ordinate matters relating to design so that "all reasonable steps" are taken to ensure that, if the building work is carried out in compliance with the design, it would be in compliance with all relevant requirements.

The Royal Institute of British Architects (RIBA) has recently launched a "principal designer register". It includes a requirement for anyone wishing to be on the register to demonstrate their competence to perform the role, both from the Building Regulations principal designer duties but also the CDM Regulations principal designer duties. The intention is that it will have a separate "tier" for entities demonstrating the competence necessary to perform these principal designer roles in relation to an HRB project. It will be interesting to see the take-up on the register and whether being on the register will be something that clients will look for before they make a decision as to whom to appoint as their principal designer.

The principal contractor has similar obligations to ensure compliance with Building Regulations during the construction phase. It must plan, manage and monitor the building work during the construction phase and co-ordinate matters relating to the building work to ensure it is in compliance with all relevant requirements. Unlike the duties on principal designers however, many of the duties placed on principal contractors carry strict liability. This means that the principal contractor is under an absolute obligation to ensure compliance with such obligations – taking reasonable steps (if that does not in fact result in compliance) will not be sufficient.

The government has stated that strict liability duties on designers will be introduced in the future, and that the current qualification of these obligations is due to a short-term lack of appropriate insurance products for the design community.

There are specific obligations of co-ordination between the principal contractor and principal designer. This is intended to ensure that building projects are co-ordinated and well planned and that the parties are co-operating to ensure that the relevant requirements are met.

Other contractors and designers

Like the CDM Regulations, all contractors and designers working on a project have general duties in relation to the design and/or construction of that project.

Competency

There are requirements for a client to check the competency of the entities it is appointing on a project, including the principal contractor and principal designer, much like the current requirements under the CDM Regulations. The regulations introduce specific checks that the client must undertake as part of the competency check where the works involved HRB work. The client must also keep a written record of the steps taken to ensure competence in these circumstances.

Clients should review the current questions they ask their prospective contractors and consultants pre- appointment to ensure that they can be satisfied that the persons they are appointing are competent to perform the role they are being appointed to do.

What next?

The changes enacted by these regulations in relation to the dutyholder regime are similar to those under the CDM Regulations. Clients should ensure that they are familiar with the differences in making the appointments required by the regulations. Failure to do so will mean the client will take on the additional burden, and it may well not be competent or able to do so.

Those entities currently operating as principal designer under the CDM Regulations may wish to consider whether they are able to perform the role of principal designer under these regulations and whether they have the requisite skills, knowledge and experience to do so, particularly if the project in question involves construction of an HRB.

And finally, the old chestnut of professional indemnity insurance arises. Those in the industry are well aware of the difficulties in the market for anyone working on a construction project. It remains to be seen how insurers will respond to the regulations, particularly where their insured wishes to take on one of the principal dutyholder roles of principal designer or principal contractor.