What the Building Safety Act 2022 means for construction clients - Part 1

Introduction

The Building Safety Act 2022 introduces the most radical change to the English regulatory landscape for the built environment in a generation. Needless to say, many of the changes have far-reaching consequences for construction clients.

Some of the biggest changes have been to the Building Regulations 2010. Not only do they introduce new procedures, but they also impose new duties on construction clients, with, under revisions to the Building Act 1984, harsher penalties for failures to comply.

With the period of grace for transitional arrangements expiring on 6 April 2024, you cannot afford to ignore them. This blog, Part 1 of a 2-part series, gives you a taste of what to expect for buildings other than higher-risk buildings.

To find out about higher-risk buildings, read Part 2.

Changes to building regulations

If you’re a construction client carrying on work in England – for example, an organisation building your own offices, a developer, or a homeowner doing up your home – you will be impacted by the recent changes to the regulatory system for building control.

These changes all stem from the 2017 Grenfell Tower fire, which precipitated a root and branch rethink of the way we protect the safety of the people who use buildings.

Led by Dame Judith Hackitt, the rethink found (among many other things) that the existing Building Regulations 2010 (BRegs), one of the main objectives of which is to protect people in buildings, had significant shortcomings. For example, she found that:

• The people carrying out design and building work, and those checking it, did not always appear to be adequately competent to ensure that projects they work on comply with the BRegs.
• The systems used to assure compliance in design and building work appeared to fall short of satisfactory standards.
• The penalties for breaches were not enough of a deterrent to discourage non-compliance.

The Building Safety Act 2022 (BSA) responded to these shortcomings, opening the way for a piece of secondary legislation – The Building Regulations etc. (Amendment) (England) Regulations 2023 – to fix them. It does this by amending the BRegs to:

• Introduce new dutyholder roles with accompanying duties.
• Insist that these dutyholders have adequate competence.
• Impose new procedures to mitigate risks to the safety of building users.

Closely related to these measures, the BSA also amended the Building Act 1984 to make dutyholders’ non-compliance more punitive in various ways.

What are dutyholders?

As the name suggests, dutyholders are persons (i.e., individuals or corporate bodies) with legal duties.

The new changes to the BRegs identify five kinds:

1. client

2. designer

3. contractor

4. principal designer

5. principal contractor

It is possible for one person to take on more than one dutyholder role. For example, principal dutyholders do just that: they have designer or contractor duties, with additional principal dutyholder obligations on top.

Clients

Under the BRegs, a ‘client’ is ‘any person for whom a project is carried out.’

There is a special sub-category of client called a ‘domestic client’, which means ‘a client for whom a project is carried out which is not in the course or furtherance of a business of that client.’

This includes Mr and Mrs Smith extending their home. They are treated differently because, rather like consumers, they are generally inexpert buyers of design and building services and are thus deserving of protection. Although they still have duties, these duties are less onerous than those of non-domestic clients.

A client cannot escape the client duties. Indeed, if a client fails to appoint others to dutyholder roles, or if other dutyholders’ contracts come to an end before the project has concluded, a client may find itself responsible for carrying out other duties on top of its own.

Other dutyholders

The other dutyholders all have a general duty to cooperate and comply with relevant requirements, which of course helps clients in meeting their duties.

A ‘designer’ is ‘any person who in the course of a business either carries out any design work, or arranges for, or instructs, any person under their control to do so.’

This definition is rather broad and can easily extend to persons who might ordinarily think of themselves primarily as contractors or clients (or domestic clients).

A ‘contractor’ is ‘any person who, in the course of a business, carries out, manages or controls any building work.’

This group can include a client but not a domestic client.

In a bid to assign accountability for compliance, the BRegs now require you to identify one designer and one contractor to be responsible for signing off on, respectively, all the design work and all the building work. The collective name for these persons is ‘principal dutyholders’.

Principal dutyholders are the client’s best friends, the persons they rely on to help them to comply, secure a completion certificate from the relevant authority, and thus manage their ongoing liabilities for the safety of users in their buildings.

A ‘principal designer’ takes on additional duties on top of their duties as designers. To do so, they must have ‘control over the design work.’

A ‘principal contractor’ takes on additional duties on top of their duties as contractors. They must have ‘control over the building work.’

Although there can only ever be one of each principal dutyholder in post at one time, it is of course possible to replace them mid-project.

CDM dutyholder roles

You might be thinking to yourself, “Hang on – these dutyholder roles aren’t new: they were already in existence under the Construction (Design and Management) Regulations 2015 (CDM).”

You’d be half right. There was (and still is) a set of dutyholder roles under the CDM but, even though they have DNA in common and have the same names, they are different to the new dutyholder roles under the BRegs.

It helps to think of the two sets of roles as ‘BRegs dutyholders’ and ‘CDM dutyholders,’ and remember that you may well need both on a project.

To avoid confusion, therefore, clients should clearly identify who is doing what in appointments and articulate expectations regarding these regulated roles accordingly. (Although it is not a given, the industry anticipates that CDM dutyholders will be appointed to the roles of the same name under the BRegs – if they are competent to do so.)

If this is still unclear, all dutyholders have a mutual obligation to help each other to meet their duties, which should ensure that important responsibilities and obligations are less likely to fall through the gaps. After all, the primary objective is compliance, not catching people out.

The kinds of building project affected

The kinds of projects affected are those described in the BRegs. Although there are exemptions, this group includes almost everything from comparatively small alterations and renovations to large multi-million-pound projects.

Higher-risk buildings

One of the biggest changes in the BRegs is that it identifies a new category of building: higher-risk buildings (HRBs).

Although this blog does not cover the regulatory changes in relation to HRBs, which are radical, we mention them here because, even if you are not planning an HRB, you still need to know a bit about them.

Note: to find out about HRBs, see Part 2 of this series.

Briefly, HRBs are higher-risk because they share the characteristics and features of Grenfell Tower – for example, many storeys that make it difficult to evacuate in an emergency – that made the impact of its fire so disastrous.

To be classed as an HRB, the project must be for a building that, when built, will be at least 18 metres in height or have at least seven storeys, and contain at least two residential units.

Note: the full definition is quite involved, with surprising inclusions and numerous class exemptions.

HRBs are subject to a new building control regime overseen and administered by a new Building Safety Regulator.

The reason you need to know a bit about HRBs even if you’re not planning one is because a project might turn into one as it develops. If that happens after building control approval, the client must stop the project, regroup, and go down a different regulatory path. (Dutyholders have specific duties to report such a change to you.)

The new regime includes rigorous stop-go gateways likely to add significant amounts of extra time to any schedule and extra resources to manage the so-called golden thread of information and control changes. It also adds extra jeopardy insofar as the Regulator has the power to stop operations and withhold final approval. All this has serious implications for your business case and procurement strategy.

Clients’ statutory duties under the BRegs

The client’s chief duty, which does not extend to domestic clients (see below), is to make suitable arrangements for planning, managing, monitoring their project so that it complies with all relevant requirements. This includes allocating enough resources (e.g., time and, presumably, money).

A client’s arrangements are ‘suitable’ if:

• They ensure not just that the design work is carried out so that the building work to which the design relates, if built, would comply with all relevant requirements, but also that the building work is carried out in compliance with all relevant requirements.
• They enable the designers and contractors to cooperate with each other to ensure compliance with all relevant requirements.
• They provide for periodic review of the design and building work to identify whether it is HRB work.

Once these arrangements are in place, a client must:

• Ensure that they are maintained and reviewed throughout the project.
• Provide information about the building to every designer and contractor on the project as soon as practicable.
• Cooperate with other persons working on or in relation to the project such that other BRegs dutyholders can fulfil their duties or function. Note the wording here: clients must cooperate with all persons where a failure to do so might interfere with the ability of dutyholders on the project to fulfil their duties or function. Since this is likely to be rather hard to predict, it is best simply to cooperate with everyone with a legitimate interest in the project – regardless of whether they are dutyholders.

Domestic clients are not required to ensure suitable arrangements

When you are a domestic client, the duty to ensure that there are suitable arrangements in place or that they are maintained throughout the life of the project is allocated as follows:

• Where there is only one contractor, the duty is the contractor’s by default.
• Where there is more than one contractor, the duty is either the BRegs principal contractor’s or, where you agree in writing with the BRegs principal designer, the BRegs principal designer’s.

Note: however, that you must satisfy yourself that these duties have been allocated.

Situations where there is more than one client

Where there is more than one client on a project, they must agree between them in writing who is to take on the BRegs client role.

The other clients still have some duties under the BRegs, though. They are:

• the duty to provide information to the extent that it is in the possession of the client or which is reasonably obtainable by or on behalf of the client.
• the duty to cooperate with other dutyholders.
• the duty to make suitable arrangements to ensure that designers and contractors know that they are working on an HRB.

Appointments generally

When appointing any dutyholder, clients must take all reasonable steps to satisfy themselves that the prospective appointee is:

• competent to plan, manage and monitor its work so that it complies with all relevant requirements.
• able to fulfil its general duty to plan, manage and monitor. This is different to being competent: it means having the requisite capacity.

Checking competence and capacity are not straightforward. Fortunately, clients are in theory helped in this duty by would-be BRegs dutyholders’ reciprocal duty not take on roles that they are not competent or able to fulfil.

Even so, clients should look for appropriate qualifications, current certifications, experience, and references as evidence. (Since CIOB members are highly qualified and work to a code of professional conduct, they are a good bet as contractors and especially principal contractors.)

Similarly, clients should review their standard questions when appointing contractors and designers to elicit evidence of their competence.

Note: other than for individuals carrying out the BRegs principal dutyholder roles, the individuals carrying out the work may be in training provided their work is supervised by an appropriately competent individual.

Appointment of BRegs principal dutyholders

As well as meeting the general requirements for all appointments, clients must meet additional requirements when appointing BRegs principal dutyholders.

In particular, clients must take all reasonable steps to satisfy themselves that a prospective BRegs principal dutyholder has appropriate competence. This means:

• The prospective principal dutyholder must have control over the design or, as the case may be, the building work.
• Where a client is appointing a corporate body, the corporate body must have both the appropriate organisational capability and be able to designate an appropriately competent individual to manage the function.
• Where a client is appointing an individual, he or she must have appropriate skills, knowledge, experience and behaviours.

Note: This skill set is set out in PAS 8671 for BRegs principal designers and PAS 8672 for BRegs principal contractors

‘Behaviours’ here include refusing work which is beyond the individual’s competence, refusing to carry out work that would not comply with the BRegs, and cooperating with other persons in relation to the work.

A client must identify principal dutyholders for their project before the construction phase begins.

If a principal dutyholder’s contract with a client ends before the project completes then the client must appoint a replacement, failing which the principal dutyholder’s duties default to the client.

This is far from trivial: taking on these duties exposes a client to considerable liability if it is not suitably competent or doesn’t have the requisite capacity, and so it should replace departing principal dutyholders quickly or plan to keep them for the duration of the project.

Generally speaking, since principal dutyholders are so pivotal to demonstrating compliance, and since balls are more easily dropped when responsibilities are handed over, clients are wise to avoid switching principal dutyholders mid-project, if possible. This means treating the vetting process carefully.

Where there is more than one contractor

Where there is (or is likely to be) more than one contractor, a client may identify a BRegs principal contractor in one of two ways:

1. It can appoint them directly. If so, it must be in writing.

2. Alternatively, it may certify in writing that the CDM principal contractor is also contracted to the BRegs principal contractor role.

Where there is just one contractor

Where there is (or is likely to be) only one contractor, BRegs principal dutyholders are assigned either by default or without the client’s involvement.

Thus, where there is only one contractor, that person adopts the BRegs principal contractor role by default and must fulfil its duties. They are called a ‘sole contractor’.

If there is a sole contractor and is also (or is likely to be) just one designer at any time, that designer is treated as the appointed BRegs principal designer by default and must fulfil the role’s duties. They are called the ‘sole designer’.

If there is a sole contractor but more than one designer at any time, you still don’t have to make an appointment. Instead, the designers must between them agree who is to fulfil the principal designer duties. They must do so as soon as possible, and the person that takes on the role (called the ‘lead designer’) must give you a copy of the resulting written agreement.

Despite not being involved in these assignments, the client should nonetheless check that the assignees are competent and confirm with the sole contractor and sole/lead designer that they understand their obligations as principal dutyholders under the BRegs.

What happens after a client appoints a principal dutyholder

After the client appoints a principal dutyholder (or sole contractor and sole/lead designer) at any time after an application for building control approval is made or a building notice is given, the client must give notice to the relevant authority. The notice must include:

• The building work’s location.
• The appointee’s details.
• The date you appointed them.
• Except where they are the first appointee to the role, their predecessor’s contact details.
• The date the predecessor ceased to be in the role.

Someone can do this on the client’s behalf, but if so, the client must sign it off with an appropriate statement.

The client should expect departing principal dutyholders to send a document explaining their compliance strategies, and this must arrive no later than 28 days after the end of their appointment.

This is a critical part of the compliance jigsaw puzzle, so clients should make sure that they secure it and show it to the replacement principal dutyholder as soon as possible.

What happens after a domestic client replaces a principal dutyholder

Things are slightly different for domestic clients. When principal dutyholders (or sole contractor and sole/lead designer) change, domestic clients should expect the outgoing dutyholder to notify them within five days of the appointment ending.

After that the domestic client must, as soon as practicably possible, provide the replacement dutyholder with their predecessor’s contact details and the date that their appointment ended.

Any liaison with the relevant authority is down to the replacement dutyholder.

What you can expect from the BRegs dutyholders you appoint

BRegs dutyholders must provide information to assist the client to comply with all relevant requirements.

Similarly, BRegs dutyholders must all be satisfied that you understand your duties under the BRegs. This means that they should at the very least ask the question. Some might go further and furnish you with a document describing your duties.

You have the right to expect help from contractors and designers on certain matters beyond their automatic legal duties.

For example, if you ask them to notify you when any of the work is higher-risk building work, they have a statutory duty to do so.

You also have the right to ask principal dutyholders to assist you in providing information to other dutyholders, and they have a statutory duty to do so.

Finally, you should be able to count on principal dutyholders to make sure that other dutyholders cooperate with you.

What happens if you take over from another person in the BRegs client role

Clients that take over a project at any time after an application for building control approval is made or a building notice is given must give notice to the relevant authority. The notice must include:

• The building work’s location
• The new client’s contact details
• The date the new client took on the role
• Their predecessor’s contact details
• The date the predecessor ceased to be client

Someone can do this on the client’s behalf, but if so, the client must sign it off with an appropriate statement.

Other communication with the relevant building control authority

Changes to the BRegs affect how you must notify the relevant building control authority. For non-HRBs, the most important changes affect commencement and completion.

Commencement

The definition of commencement matters because until then, the clock is ticking towards the expiry date of your initial approval notice.

This definition varies depending on the project type. For work that does not involve foundations, for example, commencement only kicks in once 15% of the work is complete. On the other hand, complex new buildings are ‘commenced’ once the foundations and structure for the lowest floor have been built.

Completion

Once your project is complete, you must notify the relevant authority within five days. The bundle of information in the notice should include statements signed by:

• the principal dutyholders confirming that they have fulfilled their respective duties under the BRegs.
• the client confirming that, to the best of its knowledge, the work complies with all applicable requirements.

If the Regulatory Reform (Fire Safety) Order 2005 applies to your building, the bundle must also include information related to fire safety.

Note: The Regulatory Reform (Fire Safety) Order 2005 applies to all non-domestic premises including workplaces and the common parts of multi-occupied residential buildings in England and Wales

The relevant authority then has eight weeks to issue a completion certificate to confirm that the project complies with relevant requirements. This certificate is valuable evidence of compliance but not conclusive evidence. The door is left open, meaning that you have an ongoing liability.

Tougher penalties

Not only did the BSA change the BRegs to locate responsibility for compliance more precisely, they also ramped up the penalties for breaches and contraventions prescribed in the Building Act 1984, with the potential for longer prison terms, tougher fines, or both, and with extra penalties for every day that fines are unpaid.

Notices to remove or alter offending work can now be made up to 10 years after the event – instead of the old 12 months.

Also, your project can be ordered to stop even if the relevant authority only suspects (with evidence) that there is a ‘risk of serious harm condition’.

Finally, where an offence under the Building Act 1984 is committed by a body corporate with the consent or connivance of any of its officers or neglect on their part, that individual (as well as the body corporate) commits the offence and is liable accordingly.

Conclusion

In aiming to better mitigate risks to the safety of building users, the changes to the BRegs (and the Building Act 1984 that rules them) have significant impacts for the lynchpin role of client.

With great influence comes great responsibilities, which are now spelled out in law:

You must plan, manage and monitor compliance.

You must satisfy yourself about your appointees’ competence.

You must cooperate and share information.

And if you don’t, you face stiffer penalties and longer-lasting liabilities than ever before.