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. A person must hold the role of ‘Principal Designer’ and ‘Principal Contractor’, each carrying their own specific duties and additional competency requirements.
In Parts 2 and 3 we examined what is meant by competency in relation to Principal Designers and Principal Contractors for the purpose of the BRAE Regulations.
The operative secondary legislation is the Building Regulations etc. (Amendment) (England) Regulations 2023 (“BRAE Regulations“) which amend the Building Regulations 2010 (“Building Regulations“).
In this Part 4 we examine the obligations of a client in relation to the Principal Designer and Principal Contractor for the purpose of the BRAE Regulations.
1. What are the Client’s duties in relation to Principal Designer and Principal Contractors?
Like Principal Designer and Principal Contractors, clients are key statutory dutyholders under the BRAE Regulations. They are responsible for:
- appointing the Principal Designer and Principal Contractor in writing;
- making suitable arrangements for planning, managing and monitoring a project (including allocating sufficient time and other resources) to ensure compliance with the Building Regulations and ensuring they are maintained and reviewed throughout the project;
- providing building information as soon as is practicable to every designer and contractor on the project; and
- co-operating with other relevant dutyholders.
In addition to their general duties, clients also have certain specific obligations in relation to the Principal Designer and Principal Contractor role.
2. Does the client have additional duties for Higher Risk Buildings?
In respect of Higher Risk Building works ((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), (HRB) on each appointment of a Principal Designer or a Principal Contractor the client must keep a record, in writing, of the reasonable steps they took to satisfy themselves that the Principal Designer and Principal Contractor meets the competence requirements.
3. Does this mean that clients do not need to keep a record of competence checks for non HRB’s?
Whilst there is no express statutory requirement that they do so, it will be prudent that a client keeps such records in order to be able to prove that they have properly investigated the competency requirements before an appointment in writing is made. It will also be sensible that appointments include a representation from the relevant appointees that they meet the competency requirements.
4. What happens about replacements to those roles?
If the appointment of a Principal Designer or a Principal Contractor ends before the end of the project, the client must appoint a replacement and until then, the client must fulfil the duties of a Principal Designer or Principal Contractor (as the case may be).
5. Is checking for serious sanctions mandatory?
Yes, a client appointing a Principal Designer or a Principal Contractor must ask the person they are appointing whether a ‘serious sanction’ has occurred in relation to them within five years before the date of their appointment and consider any information available to the client relating to any misconduct. A ‘serious sanction’ is defined as:
- the issue of a compliance notice under the Building Regulations;
- the issue of a stop notice under the Building Regulations;
- a conviction for any offence under the Building Act 1984, the Health and Safety at Work etc. Act 1974, the BSA, and the Regulatory Reform (Fire Safety) Order 2005; or
- a report published by an inquiry finding that their action or inaction resulted in one or more deaths or was likely to have been a contravention of any of the abovementioned statutory requirements.
The client should keep written records of asking the question whether a ‘serious sanction’ has occurred in relation to them within the last five years and that they have considered any records of misconduct.
6. Is it always necessary for a client to check competence requirements?
Yes. These are new building safety roles (see Parts 2 and 3) so a client’s pre 1 October 2023 experience of a consultant or contractor alone will not suffice. A client must keep written records of how they satisfied themselves that the Principal Designer or Principal Contractor is able to fulfil the general duty to plan, manage and monitor the general competence requirements and specific competence requirements as set out in the BRAE Regulations. This applies to those known and unknown by the client. It will also be prudent to check and investigate those requirements for each project.
7. Is a declaration of compliance on completion necessary if the Principal Designer and Principal Contractor have made such a declaration?
Yes, a client is also required to provide a signed compliance declaration following completion of the works that, to the best of their knowledge, the works comply with the requirements of the Building Regulations despite the Principal Designer and Principal Contractor having similar obligations in this regard.
8. But what if there are multiple clients?
Under certain procurement strategies, e.g. PFI, there will be multiple clients who have the potential to owe the onerous duties to the Principal Designer and Contractor outlined above. To avoid this inefficiency, the clients can nominate one party to take on the role of lead client. This must be confirmed by all clients in writing.
Following approval, the lead client owes the duties outlined in this article, whilst the remaining clients are obliged to carry out less onerous duties including:
- providing building information to every designer and contractor working on the project;
- co-operating with others working on the project to enable them to comply with their duties;
- allowing for a periodic review of the building and design work to identify whether it is higher-risk building work; and
- providing information to designers and contractors so they are aware the project involves higher-risk building work.
Summary
Clients are under obligations to ensure that those they employ as Principal Designer and Principal Contractor are competent to take on that role and must properly investigate and record that those they engage have the required competencies prior to appointment. It will also be sensible to make sure that the relevant duties and information given by the appointees regarding their BSA related competencies are set out in the relevant appointments or contracts.