Insights

Jonathan Woodroffe

Published 6 December 2023
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Important New Building Regulations

New Building regulations came into force in October 2023. They make important changes to the dutyholder regime and come with significant penalties in the event of non-compliance. Therefore, it’s absolutely essential that anyone involved in the construction industry understands the new requirements whether you are a contractor, developer, designer or client.

Background

On 17 August 2023, the Government published new secondary legislation under the Building Safety Act 2022 (the Act). This amends the Building Regulations 2010 (the 2010 Regulations) to support the new higher-risk building control regime. The new rules came into force from 1 October 2023. The dutyholder and competence requirements are set out in Part 2A. The new legislation is in addition to the Fire Safety (England) Regulation 2022 which came into force in 2023.

Which type of projects do the rules apply to?

The new regulations apply to all “building work” in England, i.e. to any project that requires building regulations approval, with only limited exceptions for “exempt” work and minor works. The new regime focuses on dutyholder responsibility for ensuring that building works comply with Building Regulations (as opposed to on-site safety).

Higher-risk buildings work

The regulations provide for additional duties and dutyholder responsibilities for any project involving higher-risk building work. A higher-risk project is any project in England for which the Building Safety Regulator is the building control authority. This will be buildings that are at least 18m in height or have at least seven storeys and contain at least two residential units, including care homes and hospitals during design and construction.

Who is the dutyholder?

The are five roles that have dutyholder responsibilities. These are:  

  • The client – any person for whom a project is carried out. There is an exception for ‘domestic clients’ which is defined as any client for whom a project is being carried out which is not in the course or furtherance of that client’s business. There may also be more than one possible client in relation to any given project in which case the parties need to agree in writing which of them will be treated as the ‘sole’ client.
  • Designers – any person who in the course of business carries out any design work or arranges for or instructs any person under their control to do any design work.
  • Contractors – any person (including a client, but not a domestic client) who in the course of a business, carries out, manages or controls any building work.
  • Principal designer – a designer with control over the design works who is appointed to the role.
  • Principal contractor – a contractor with control over the building work, who is appointed to the role.

What are the dutyholder duties?

Different dutyholders will have different duties. There are also general duties that apply to all dutyholders.  

General duties

Any person carrying out any building or design work must ensure the work carried out by them (and by any workers under their control) is planned, managed and monitored so as to be compliant with all relevant requirements.

Any person carrying out any building or design work must cooperate with the client, designers and contractors (including the principal designer and principal contractor, if any) to the extent necessary to ensure that the work is compliant with all relevant requirements.

Finally, there are duties in respect of the appointment of contractors and or designers which include taking “all reasonable steps” to satisfy themselves that the person being appointed fulfills the competency requirements for their role. There are special provisions for those who are in training. In the same vein, parties must only accept such an appointment if they satisfy the relevant competence requirements. The competency requirements as set out in the rules.

Additional duties for higher risk properties

There are additional duties and roles on any project involving higher-risk building work and the client has a heavy burden of responsibility in ensuring the requirements of the new higher-risk building regime are met.

These include:

  • Checking whether a principal designer or principal contractor has been involved with a ‘serious sanction’ issue within five years of their appointment. The client is required to keep records of the steps they took in order to be compliant.  Serious sanctions include the issue of compliance notices and stop notices under the Building Regulations, convictions under the Building Act 1984, The Health and Safety at Work etc. Act 1974, the BSA, and the Regulatory Reform (Fire Safety) Order 2005.
  • Providing (as part of the building control approval application), a competence declaration confirming they have complied with the duties, a construction control plan and a compliance declaration by the principal contractor and principal designer as part of the application for a completion (or partial completion) certificate.

Principal contractor additional duties

The principal contractor and principal designer also have certain additional roles, including:

  • A designer or contractor must not start design work unless satisfied that the client is aware of the client duties. Both the designer and contractor must also take all reasonable steps to ensure that the design or building work is in compliant with the relevant regulations.
  • In providing a design, a designer must take all reasonable steps to provide sufficient information about the design, construction and maintenance of the building to assist the client, other designers and contractors to comply with all relevant requirements.
  • Where either a designer or contractor is carrying out only part of the design or work, they must consider other work which directly relates to that building work and report any concerns as to compliance. If requested to do so, a designer or contractor must provide advice to the principal contractor or the client on whether any work is higher-risk building work.
  • Ensuring designs for the building work produced before a building control approval application is submitted are provided to the client.
  • Establishing and maintaining a mandatory reporting system for safety occurrences.
  • On completion of the building works, providing a statement as part of the application for a completion (or partial completion) certificate confirming that they have fulfilled their duties.
  • When the principal designer or contractor’s appointment ends, no later than 28 days after the end of the appointment, the principal designer or contractor must give the client a document explaining the arrangements it put in place to fulfil its duties. Any replacement principal designer or contractor must review the arrangements put in place for fulfilling the duties so that all reasonable steps are taken to ensure that the design or buildings work are compliant.

Comment

The above is only a summary of some of the main provisions of the new regulations and therefore if they affect you, you must make sure you familiarise yourself with the full provisions.

It will be necessary for affected professionals to review their processes and systems to ensure they are compliant, including their tender and appointment processes, as well as their record-keeping and monitoring systems. 

If you have any concerns about the application of these rules to you, please get in touch,

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