The construction industry is undergoing a transformative shift with the implementation of the Building Safety Act 2022 (BSA). As part of these reforms, from 1 October 2023, a new dutyholder regime applies to all construction projects subject to limited exceptions as set out below. This means that for the majority of construction projects a ‘Principal Designer’ and ‘Principal Contractor’ must be appointed, each carrying their own specific duties and competency requirements.
The titles ‘Principal Designer’ and ‘Principal Contractor’ may sound familiar. These labels are also used in the Construction (Design and Management) Regulations 2015 (CDM Regulations). Whilst labelled identically, the BSA roles are distinct from the CDM ones and involve different responsibilities and skillsets.
The operative secondary legislation for these BSA roles is The Building Regulations etc. (Amendment) (England) Regulations 2023 (BRAE Regulations) which amend the Building Regulations 2010 (Building Regulations).
1. What does Principal Designer and Principal Contractor mean under the BRAE Regulations?
Where there is:
- more than one contractor working on a project (which includes main contractors, subcontractors and consultants), the client must appoint in writing a) a designer who has control over the design work as the Principal Designer and b) a contractor who has control over all the building work as the Principal Contractor;
- only one contractor and one designer involved on a project, they are to be treated as the Principal Designer and Principal Contractor respectively. Where there are multiple designers, the designers must agree in writing who is to fulfil the duties of Principal Designer.
Responsibility for both the Principal Designer and Principal Contractor roles can be held by an organisation or an individual.
There is an additional requirement for clients of “Higher Risk Building” work (as defined in s 120D of the Building Act 1984 (as amended by the BSA) and the Higher-Risk Buildings (Description and Supplementary Provisions) Regulation 2023). On appointing the Principal Designer and Principal Contractor, the client must keep a written record of the steps it took to satisfy itself that the appointments complied with the Building Regulations and fulfilled the requirements of competence.
2. What duties apply to Principal Designers and Principal Contractors under the new regime?
The BRAE Regulations contain a set of duties that apply generally to all dutyholders (including a client/employer, contractor, designer, the Principal Designer and Principal Contractor), in addition to specific duties for each dutyholder.
Dutyholders must:
- take all reasonable steps before appointing a person to carry out either building or design work to ensure that the person appointed fulfils the relevant competency requirements, or if the person is in training, that they have the appropriate supervision;
- ensure, or take all reasonable steps to ensure, that work is planned, managed and monitored so that it is in compliance with all relevant requirements; and
- cooperate with all other dutyholders in order to ensure that the building work complies with the relevant requirements.
In addition:
- Principal Designers must plan, manage and monitor the design work during the design stage of a project, and coordinate matters relating to design work so that all reasonable steps are taken to ensure that the design of the building work would comply with all relevant requirements. This includes ensuring that the other designers of the project are cooperating, coordinating and complying with the relevant requirements; and
- Principal Contractors must plan, manage and monitor the building work during the construction phase and coordinate matters relating to the building work comprised in the project to ensure the building work complies with all relevant requirements.
Whilst the obligations on Principal Designers and Principal Contractors may at first glance appear identical, a more onerous obligation is placed on Principal Contractors. They are obliged to ensure that works comply with the Building Regulations, as opposed to a reasonable steps obligation placed on Principal Designers.
Although both roles are subject to these statutory requirements, it will be sensible to include express contractual requirements in relation to them in any relevant appointment or contract.
For more information on the latest Health and Safety Executive guidance please view here.
3. When do the appointments of Principal Designer and Principal Contractor have to be made?
Appointments to the roles of Principal Designer and Principal Contractor must be made:
a) on “Higher Risk Building” projects, before an application is submitted for building control approval to the regulator; and
b) on other projects, before the construction phase begins.
The Building Safety Regulator has indicated that having the formal appointment/contract in each case signed and in place is less important than making sure that the relevant functions of the Principal Designer and Principal Contractor are properly carried out. All designs must be properly overseen and a holistic view taken of them even if the relevant appointment or contract has not yet been executed. However, prudent employers will no doubt prefer to have the formal engagement of these consultants finalised in advance, thereby contractually evidencing the BSA requirements.
4. How does a Principal Designer and Principal Contractor under the BRAE Regulations differ from a Principal Designer and Principal Contractor under the CDM Regulations?
The primary objective of the Principal Designer role under the:
- CDM Regulations is focused on health and safety in the pre-construction phase of a project; whereas
- BRAE Regulations is focused on design.
Similarly, a Principal Contractor under the:
- CDM Regulations must ensure the health and safety of those affected by the project; whereas
- BRAE Regulations must take all reasonable steps to ensure compliance with Building Regulations.
The Health and Safety Executive have suggested in their guidance on building safety competence that there may be circumstances where the Principal Designer or Principal Contractor under the CDM Regulations can take on a dual role and also act as Principal Designer or Principal Contractor for the purpose of the BRAE Regulations; this is only where that person has the requisite skillset to cover both roles. However, many argue, particularly for the Principal Designer under the BRAE Regulations, that in practice it is difficult to find individuals or organisations who have the requisite competencies to do, or who are prepared to take on, both roles. The temptation may be to make such dual role appointments in the interest of saving costs and not adding to the number of appointments made, possibly by using experienced CDM Coordinators, however these managers may not meet the separate BRAE Regulations criteria.
In dual appointments, a client/employer must certify in writing that the Principal Designer and/or Principal Contractor have the requisite competencies to carry out both roles. It is therefore incumbent on a client/employer to interrogate the competence of any dual role appointee to make sure that they have the skill sets to carry out both roles. However, it is easy to see how the use of the same terms under the different regulatory regimes could potentially cause confusion. See separate Parts referred to at the end of this article about what is meant by “competencies” for the Principal Designer and Principal Contractor roles.
5. What exclusions are there to the BSA dutyholder regime?
The exceptions are for works which are so minor in nature that no building notice or deposit of full plans are required e.g. replacing a shower or replacing a damaged cable for a single circuit.
Further, there are limited exceptions for “exempt” work. Exempt buildings and works refers to the erection of any building (or extension and carrying out of works) thereto which are:
(a) buildings controlled under other legislation;
(b) buildings not frequented by people;
(c) greenhouses and agricultural buildings;
(d) temporary buildings (i.e. not intended to remain for more than 28 days);
(e) ancillary buildings (e.g. site office during construction or civil engineering works); and
(f) small detached buildings.
The upshot of this is that the dutyholder regime applies to most projects, including smaller domestic projects subject to carve outs as detailed in the Building Regulations summarised above. It is therefore crucial that all those involved in construction work are aware of their duties under the regime and the competence requirements for the necessary dutyholders.
Summary
It is important that these new building safety roles are differentiated from any requirements under the CDM Regulations regime and that the differences are fully understood, as it may be difficult to find a single person who has the necessary capability and competence to fulfil both roles under the two regimes. Previous experience of CDM roles alone will not suffice.
The competency requirements for Principal Designers will be discussed in Part 2 of this series and for Principal Contractors in Part 3.