In light of secondary legislation to the Building Safety Act and The Building Regulations (Amendment) which came into force on 1 October 2023, many people are looking to existing contractual arrangements and asking if they already fulfil new requirements, or in some cases presuming that they already do due to a resemblance.
This is of particular concern where provisions from the Building Safety Act apply to all building projects, not just to higher-risk buildings (HRBs).
As legislation does not prescribe the fine detail of processes, many of the mechanisms used to facilitate provisions under the legislation such as change control, information management, competence management and mandatory occurrence reporting already exist and are being used.
Whilst this can be viewed as a positive reflection of progress, consider that both compliance and non-compliance can both look very similar to what we are used to seeing on-site, but “business as usual” is by no means the way forward.
Considering the appointment of a “Principal Designer” and Principal Contractor” as an example, these are required by the amended Building Regulations and do not apply only to HRBs as follows:
11D.— (3) The appointments under this regulation must be made—
(a) in relation to a project which includes higher-risk building work for which an application for building control approval must be submitted to the regulator, before that application is submitted;
(b) in relation to any other project, before the construction phase begins.
Whist these roles need to be appointed, there is no text in the legislation that prohibits a party from sharing these roles and the associated liabilities, meaning that it is quite possible for a D&B contractor to act as both principal contractor, and principal designer.
The danger comes from the presumption that parties on site can fulfil these roles by their function alone without being appointed, or have been appointed when they haven’t, and it bears repeating that according to the Building Regulations:
11D.— (1) Where there is more than one contractor, or it is reasonably foreseeable that more than one contractor will be working on a project, the client must appoint in writing—
(a) a designer with control over the design work as the principal designer for the purposes of these Regulations, and
(b) a contractor with control over the building work as the principal contractor for the purposes of these Regulations.
Outside of the principal roles, it is important to remember that “designer” and “contractor” are defined only by function, and are not appointed, so consider that it is possible to fulfil these roles unintentionally.
SpecFinish – The Unintentional Designer
FIS – Introduction to the Building Safety Act
