The Building Regulations etc. (Amendment) (England) Regulations 2023 insert a new Part 2A into the Building Regulations 2010. This contains detailed requirements on clients to appoint designers and contractors who are competent and new duties for the clients, designers and contractors which came into force on 1 October 2023.
This page explains the new requirements and how they apply to all building work.
The new Part 2A of the Building Regulations should be compulsory urgent reading for all in the construction sector with any responsibility for procuring building work of any kind, or for designing or building it. These new regulations came into force on 1 October 2023 and they apply to all regulated building work. Anyone who thinks that they only apply to “Higher Risk Buildings” needs to read the regulations and urgently reconsider their view.
Part 2A introduces a whole series of new regulations, 17 in total, numbered 11A – 11Q, which cover the duties, competence and behaviour of all clients, designers and contractors. Part 2A also creates the new roles and duties of the principal designer and principal contractor for every project that was first called for over five years ago in Dame Judith Hackitt’s landmark review of Building Regulations and Fire Safety.
Some in the industry think that because the duty holder roles have the same names as those created under the Construction Design and Management (CDM) Regulations the roles are the same. This is completely incorrect, and it is worth asking why government and parliament would have devoted the time and effort to create these new regulations if they did not create new duties and roles that supplement those already existing under CDM. Readers should be in no doubt that the requirements of Part 2A of the Building Regulations place new duties and responsibilities on all involved in regulated building work of any kind.
As an example of the new duties, clients must make “suitable arrangements for planning, managing and monitoring a project (including allocation of sufficient time and other resources) so as to ensure compliance with all relevant requirements.” These arrangements must ensure that if the design is built it will be compliant with all relevant requirements and ensure that the work is actually carried out in accordance with those requirements. The arrangements must also enable designers and contractors to cooperate with each other and to check regularly whether any of the work is classed as higher risk building work, as defined in section 91ZA of the Building Act 1984, which was inserted into that Act by section 32 of the Building Safety Act 2022.
The duty to make suitable arrangements is for the whole life of the project, and not just for the kick-off meeting. There is also a duty on clients to “provide building information as soon as is practicable to every designer and contractor on the project.” Again, this is for the life of the project, not just the first few weeks! Finally, clients have a legal duty to cooperate with any other person working on the project with duties under these regulations to enable them to fulfil those duties. There is a major emphasis on planning, monitoring and managing work. The client is a key participant in the building and has explicit duties to work with their supply chain to design and deliver a complaint and safe building, whatever it may be.
Domestic clients are treated differently. Where there is only one contractor, they are responsible for making the arrangements set out above. Where there is more than one contractor then either the principal contractor or the principal designer, subject to their agreement with the client, is responsible for making those arrangements for the project. But they must be made.
Clients are not alone in having their roles regulated. The regulations make new provisions for two new roles, principal designer and principal contractor. As noted above, whilst these are the same titles as under CDM, as recommended by Dame Judith, they have quite specific additional responsibilities.
The regulation of the principal designer and principal contractor begins by setting out the appointments that the client needs to make. Where there is a single contractor then they are de-facto the Principal. Where there is more than one contractor, or reasonably foreseeable that there will be more than one contractor on a project, then the client must appoint a principal designer and principal contractor. The designer must have “control over the design work as the principal designer” and the contractor must have “control over the building work as the principal contractor”. What is more, these appointments must be made in writing: they must be explicit, evidenced and auditable!
A client may instead certify, in writing, that the person(s) appointed as principal designer and contractor under CDM are also appointed under the Building Regulations. These appointments must be made before any application for approval for higher risk building work and before construction starts on any other form of project; they are for ALL building work, not just HRBs. For higher risk building work clients will need to keep written records of the steps they took to assure themselves that those appointed are competent to undertake the work involved.
New regulation (11E) sets out in some detail the considerations that must be addressed before appointing a designer or contractor. They apply to ALL building projects and all those appointed, requiring them to be competent. Chapter 3 of Part 2A of the amendment regulations addresses the competence requirements in some detail. There are four new regulations, 11F-I, for competence: a general regulation, one each for principal designer and contractor, and one giving requirements should either principal cease to meet the competence requirements.
Chapter 4 of Part 2A sets out the general duties of all duty holders as well as the additional legal duties of principal designers and contractors. These include sharing information and communicating effectively with other parties on the project. Finally, tucked into Chapter 5 at the end of the Part is a regulation that defines as a “necessary behaviour” of anyone claiming to be competent a willingness to refuse to carry out work which is not compliant with any relevant requirement, or to undertake design work that effectively cannot be built in compliance with regulations. Co-operation is now also a necessary behaviour, along with saying no to doing things beyond their skills, knowledge or experience.
For anyone making appointments since 1 October 2023, all these requirements now apply. Part 2A of the Building (Amendments etc) (England) Regulations 2023 is now mandatory reading for anyone responsible for making appointments or bidding for work under the new regime. They will take a bit of digesting in detail. But indigestion, or worse, ignorance, will not be a reasonable defence. Indeed, it might be clear evidence of guilt and of incompetence.
These are significant duties. While some organisations are well prepared, others may need to take rapid action as these new regulations came into force on 1 October 2023. Anyone unfamiliar with them may already be committing offences. All responsible clients, principal designers and contractors and Accountable Persons should be looking to meet the new obligations in a safe, reasonable and proportionate manner.
Some may argue that this has all happened at very short notice. It is important to recognise that these regulations have been coming for over five years and so should not be a surprise to anyone paying attention. It should of course be no problem to comply with a statutory duty only to appoint those who are competent to do design and construction work. Only those employing the incompetent or who are taking on work for which they cannot clearly demonstrate their competence have anything to worry about.
These regulations are another step on the road to rebuilding trust in the construction and operation of the construction sector in general and our higher rise building stock in particular and another step on the road to building a safer future.