Construct.law - Autumn 2023
New Dutyholders and Competency Requirements
By James Worthington & Rebecca Morjaria
Following the Grenfell Tower tragedy, the Government instructed an independent review of building regulations and fire safety, led by Dame Judith Hackitt. In April 2022, the Building Safety Act 2022 (BSA 2022) was passed, intended to drive the cultural change and behaviours necessary to improve building safety, particularly for high-rise residential buildings.
The BSA 2022 brought forward a package of legislative changes intended to make buildings safer, aimed at delivering improvements across the entire built environment and to strengthen oversight and protections for residents in high-rise buildings. Its focus on risk is intended to help owners to manage their buildings effectively, while giving the home-building industry a clear, proportionate framework to deliver more, better, high-quality homes.
For the last 12 months, the industry has been waiting for the secondary legislation intended to fill in the detail for the new regimes. In mid-August, the outcome to the consultation on Part 3 of the BSA 2022 (Part 3 Outcome) and the third published outcome to the consultation on Part 4 of the BSA 2022 (which each closed back on 12 October 2022) were published along with new secondary legislation, which included The Building Regulations etc. (Amendment) (England) Regulations 2023 (the Building Regulations 2023) which sets out the new dutyholders and competency regime, by adding a new Part 2A into the Building Regulations 2010.
New dutyholders and competency requirements
The new dutyholders and competence requirements, subject to the transitional provisions, will apply to work to all buildings, being any permanent or temporary building (or any part) not just higher-risk buildings or residential. The same exemptions from Building Regulations continue to apply as before, being where the works are so minor that no building notice or deposit of full plans is required. The exemptions are set out in Schedule 4 of the Building Regulations 2010.
This new regime is intended to ensure that the works, once complete, will comply with the ‘relevant requirements’ in the Building Regulations 2010. This is not limited to structural safety and fire safety but is much broader, covering other aspects including energy efficiency, CO2 emission rates, water efficiency and the extensive requirements in Schedule 1 to the Building Regulations where relevant to the works.
Transitional provisions
The transitional provisions disapply the new dutyholders and competence regime, for:
- building work started before 1 October 2023; or
- building work in relation to which plans were deposited with a local authority or the building notice has been given to a local authority before 1 October 2023 unless on or after 1 October 2023 the deposited plans are rejected by the local authority.
Note: there appears to be an error in the drafting of this regulation as it refers to the ‘building notice’ when we believe that it should instead refer to the ‘initial notice’, being the notice issued by an approved inspector, so that the transitional provisions apply both to projects which have proceeded down the private building control route as well as those using local authority building control. That interpretation would align with the HSE’s guidance but, unless and until corrected, it creates uncertainty.
If the building work has not started by 6 April 2024 the new dutyholders and competence regime will apply even if plans were deposited with a local authority or the building notice has been given to a local authority before 1 October 2023. There is some uncertainty around the extent to which works need to have started in order to satisfy this provision. However, a building circular letter issued on 31 October suggests that ‘starting work’ could consist of undertaking any element of permanent notifiable building work as described in the applicant’s application or initial notice.
The new dutyholders
The new dutyholders are:
- Client,
- Designers,
- Principal Designer,
- Contractors,
- Principal Contractor.
As with the CDM Regulations, the same entity may be appointed as both the Principal Designer and the Principal Contractor, if appropriate.
To drive compliance, in the case of higher-risk building projects, the Principal Contractor and Principal Designer must be appointed before a Building Control application can be made but, for other projects, they must be appointed before the construction phase begins. Design and works cannot start unless the designer or contractor is satisfied that the Client is aware of its duties.
For projects only involving one contractor that contractor will be treated as the principal contractor and must fulfil the principal contractor’s duties; and if there is only one designer, that designer will be the principal designer and if there is more than one designer, the designers must agree in writing which designer is to fulfil the duties of the principal designer and the lead designer must give a copy of the agreement to the client.
Stringent competency requirements will apply to all dutyholders.
In relation to the dutyholders regime’s application to higher-risk building work (HRB work), some regulations in the new Part 2A are specific to HRB work including, for example, where a person (not just limited to the client) is proposing to use any person to carry out any building work or design work relating to a higher-risk building, the person must ask whether a serious sanction (as defined in Regulation 11E(8)) has occurred within the five years ending on the date of the appointment and consider information available relating to any of that person’s misconduct (Regulation 11E(2)(b)).
Is the new regime the same as the CDM Regulations?
The new dutyholder regime is different from the CDM Regulations. The CDM Regulations are about managing health and safety risks whilst construction works are undertaken. It has been recognised that adopting the same dutyholder names as those used in the CDM Regulations could cause some confusion however the decision has been made to keep the same names. The Part 3 Outcome notes that the Government does not expect there to be separate dutyholders for CDM purposes and for building regulations purposes, though there may be situations where, for reasons of competence, they will be different and, in these instances, they will have to work together and co-operate with each other to ensure compliance with both regulatory regimes.
If the principal designer and the principal contractor has already been appointed for CDM purposes, where appropriate, the client can certify that the appointment is also made for the purpose of building regulations requirements, providing that the competence requirements are met.
We will need to see how the industry responds to the expectation that the CDM principal dutyholders will be the same as the BSA principal dutyholders but CDM principal designers and principal contractors may find that they are swimming against the tide if they try to resist assuming the BSA dutyholder roles.
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