The Building Safety Act 2022 (the “BSA”) established and introduced a regime with a particular focus on building safety and accountability, with enhanced requirements particularly for Higher Risk Buildings. The BSA covers certain obligations and duties that apply during the design, construction, occupation, and entire lifecycle of buildings, including record keeping and information requirements and the enforcement of breaches or claims (amongst other things).
This article touches on the new dutyholder regime and some of the key features of the BSA that applies to designers and contractors that have arisen out of such regime, along with a high-level summary of other crucial matters such as Higher Risk Buildings, competency and limitation periods. The applicable legal and regulatory requirements must be considered on a project-specific basis, however.
The dutyholder regime
The new regulatory framework under the BSA and associated regulations creates a new dutyholder regime. This regime places legal responsibilities on those who participate in the design and construction process. The dutyholder regime applies to all buildings to which the Building Regulations apply (and not just Higher Risk Buildings). The dutyholder regime will therefore be applicable to a significant number of construction projects.
By way of a summary, the five main dutyholder roles are as follows:
- Client – any person or organisation for whom a construction project is carried out.
- Principal Designer – the Designer who is to plan, manage, monitor and coordinate the pre-construction phase. The Principal Designer is in control of the pre-construction phase.
- Principal Contractor – the Contractor who is to plan, manage, monitor and co-ordinate the construction phase. The Principal Contractor is in control of the construction phase.
- Designer – anyone who is to prepare or modify a design or instruct any person under their control to prepare or modify a design.
- Contractor – anyone who manages work or directly employs or engages construction workers is a contractor.
These roles have the same names as those under the Construction (Design and Management) Regulations 2015 (“CDM Regulations”), but importantly are different in nature. The CDM roles focus on health and safety, whereas the BSA roles focus on compliance with the Building Regulations.
This article focuses on the role of the BSA/Building Regulations Designer and the Contractor only. Additional considerations apply to those acting as Principal Designer and Principal Contractor. It is important to note that the Client has the ‘automatic’ right to certify the Principal Designer or Principal Contractor under the CDM Regulations, as being appointed as the Principal Designer or Principal Contractor under the BSA notwithstanding that distinct duties and regulatory requirements apply.
The role of a ‘Designer’
When acting as a Designer on a project, there are a number of duties that will apply to the professional performing this role[1]. Some of the key aspects of the Designer’s duties that you will be required to carry out are detailed below. Importantly, these obligations apply to the general duties and obligations imposed under the Building Regulations etc (Amendment) (England) Regulations 2023[2] for all professionals working under the dutyholder regime, i.e. the general duty to plan, manage and monitor.
Firstly, the Designer must not start work unless satisfied that the Client is aware of duties owed by the client. The Regulations place a positive obligation on the Designer to be satisfied of this.
In addition, when carrying out the design work the Designer must take all reasonable steps to ensure that the design is such that if the building work to which the design relates were built in accordance with that design, the building work would be in compliance with all relevant requirements (i.e. the Building Regulations). The Designer must also take all reasonable steps to provide sufficient information about the design, construction and maintenance of the building to assist the Client and other designers etc. These obligations will be important and “all reasonable steps” must be taken to carry out these requirements.
If the Designer is carrying out only part of the design of the works, additional obligations apply. For example, the Designer must consider ‘other work which directly relates to the building work’ and report concerns as to compliance of that work with the relevant requirements to the Principal Designer. Importantly, this places a positive checking obligation on the Designer to consider other works and also introduces a duty to warn requirement in the event that the Designer has any concerns with the compliance of the work carried out by others. Such positive obligations will require careful management by Designers on relevant projects. As a risk mitigation point, the extent of such obligations should be included in the professional’s scope and fee proposals.
It is important that, when carrying out the role of a Designer on a project, the obligations of a Designer under statute are understood by the Designer and their project team. The obligations and requirements discussed above should be reflected in fee proposals, scopes and contracts (provided the project is one to which the BSA applies). Records of compliance with the regulatory requirements should also be created and retained by the professional. Any changes to advice or design of the project should be properly notified to the Client and recorded.
Finally, it is key to note that when acting as a Principal Designer, a number of additional duties will be required from the professional. Whilst not covered in this article, such duties and their implications will need to be fully understood and managed by the professional carrying out this role.
The role of a ‘Contractor’
In addition to the Contractors’ general duties regarding competence, there are additional duties imposed by the BSA and Building Regulations. A contractor must understand both their general duties and the more specific duties contained in the applicable regulations.
Firstly, as with the Designer, the Contractor must not start building work unless and until they are satisfied that the Client is aware of the duties owed by the Client. Again, this places a positive obligation on the Contractor to be satisfied of this point.
Contractors are under a strict obligation to ensure that the building work they, or any workers under their control, carry out is compliant with all relevant requirements (i.e. the Building Regulations). Unlike the duty applicable to Designers, this is not limited to taking “all reasonable steps” to ensure compliance.
Additionally, Contractors are required to coordinate and provide each worker under their control with appropriate supervision, instruction and information so that the building work complies with all relevant requirements. The Contractor is required to take all reasonable steps to provide sufficient information about their building work to assist the Client, other contractors and designers to comply with all relevant requirements.
Where the Contractor is carrying out only part of the building work which comprises a project, the Contractor must consider other work which directly relates to that building work and report any concerns as to compliance with all relevant requirements to the Principal Contractor.
The Contractor is required to provide advice to the Principal Contractor or Client (if requested to do so) on whether any work is Higher Risk Building building work.
The Contractor is required to cooperate with the Client, designers and contractors, including the Principal Designer and Principal Contractor, to the extent necessary to ensure that the work is in compliance with all relevant requirements.
When acting as a Principal Contractor, a number of additional duties will be required. Although we have not covered these in this article, such duties and their implications will need to be fully understood by the contractor carrying out this role.
Before moving on to look at Higher Risk Buildings, it is important to note that it of course goes without saying that the professional consultant or contractor will need to carefully consider scopes of services/works and scoping documents provided by a client on the project. Such documents should reflect the regulatory requirements of a Designer and/or Contractor (as appropriate) under the dutyholder regime and should not impose obligations on the professional that go beyond such regulatory requirements. Any additional obligations will need to be carefully considered not only from a programme and fee viewpoint, but also from a risk-exposure and a project delivery/compliance perspective (i.e. are the requested deliverables within your control and achievable?).
Higher Risk Buildings
The BSA contains different definitions of Higher Risk Buildings (“HRB”) during the design and construction of a building and during its occupation. In England, HRBs during occupation:
- Are at least 18 metres in height, or
- Are at least 7 storeys, and
- Contain at least two residential units.
Presently expressly excluded from HRBs during occupation are care homes, hospitals, secure residential institutions, hotels, and military barracks.
In England currently, HRBs during design and construction:
- Are at least 18 metres in height, or at least 7 storeys, and
- Contain at least two residential units, or
- Are a care home, or
- Are a hospital.
A project can be a HRB project either because it involves the construction of a new HRB or work in relation to an existing HRB. It is important for a party on a project to understand if the project involves a HRB, particularly as parties working on HRB projects will be subject to a number of additional enhanced obligations with which they are required to comply.
Importantly, the Grenfell Tower Public Inquiry Phase 2 Report recommended that the definition of a HRB should be reviewed. This was acknowledged in the UK Government’s response issued earlier this year. We may therefore see a change in the not too distant future as to what will and will not constitute a HRB. It is worth also noting that different approaches are being taken in Wales and Scotland.
Where a building falls within the definition of a HRB, additional obligations and responsibilities are placed on all parties and dutyholders on the project, such as (amongst other things):
- The ‘Golden Thread’ requirements[3]:
The Golden Thread requirements relate to information management. The regime has been introduced to ensure that high quality (digital) information in respect of a HRB and its safety is produced and retained so that it is available at all stages of a building’s lifecycle. All parties to the project will be required to contribute to and update the Golden Thread. It is therefore important that the project team is aware of their responsibilities under the contract and legal requirements in respect of record keeping.
Both Contractors and Designers are responsible for creating and maintaining the Golden Thread information and for sharing information with the next dutyholder as the building’s lifecycle progresses, as well as with the Building Safety Regulator (“BSR”). While the ultimate responsibility for maintaining the Golden Thread retention system lies with the Client, the Principal Contractor and the Principal Designer, each dutyholder is responsible for maintaining their relevant information. There may also be additional requirements included in the contract terms and conditions.
Contractors and Designers will need to be proactive in maintaining and contributing to the Golden Thread. The Client should make arrangements for an electronic facility for holding and maintaining the Golden Thread, and access will be given to Designers and Contractors. For example, Contractors will need to take positive steps to contribute to the Golden Thread and provide (and obtain from subconsultants and subcontractors) the required information.
- The gateway regime
The BSA introduced a gateway regime under which dutyholders must demonstrate, amongst other things, compliance with Building Regulations requirements[4]. The regime provides for strengthened regulatory oversight and rigorous inspection of building regulation before, during and on completion of building work. The regime helps ensure that compliance with the regulations is considered by dutyholders at each stage of design and construction. As a part of the regime, the BSR will act as the building control approver.
The gateway stages act has ‘hard stop’ control mechanisms. Contractors and Designers should therefore ensure that they do not start building work on a new or existing HRB until the requisite gateway building control approval has been met. When requested from the Client, the Principal Contractor or the Principal Designer will be required to assist with requests in preparing the gateway application, working together to provide the gateway information to the BSR. However, Principal Contractors, Principal Designers, Contractors and Designers should ensure that they do not provide assistance and/or take on services beyond their agreed scope or the applicable legal requirements.
It is important for Contractors and Designers to maintain high-quality records of any Golden Thread information and any information relevant to the gateways. This will help to ensure that records are maintained of what information was compiled (and when) and will contribute towards evidence that the dutyholders have complied with their respective Building Regulations requirements.
There are also related requirements for a system to be established and maintained throughout the construction phase to enable prompt reporting of every safety occurrence to the principal dutyholders. All dutyholders need to identify and share information about the nature of a HRB project to ensure all dutyholders comply with the new regulatory regime for HRBs. Any changes to the approved building design or construction of the HRB (or the approved plans, strategies and policies) should also be properly notified, recorded, and managed in line with the HRB regime[5].
Whilst statutory timescales generally apply to the different stages of the gateway regime, it is important to note that there have been industry reports of delays in obtaining responses and approvals from the BSR. It is therefore important to note this risk and include appropriate contingencies in respect of your scopes, fees, and programme (including by inserting entitlements to additional fee and time due to the HRB/gateway regime, change in law, or other potential changes or delays outside of your control).
Competency
One of the key focuses of the BSA is surrounding competency – both of the organisations working on a relevant construction project, but also the individuals assigned by those organisations to such projects.
The Regulations[6] provide that this means that any person carrying out any building work or any design work must have:
- where the person is an individual, the skills, knowledge, experience and behaviours necessary,
- where the person is not an individual, the organisational capability,
to carry out—
- the building work in accordance with all relevant requirements;
- the design work so that the building work to which the design relates, if built, would be in accordance with all relevant requirements.
The importance of competency is further demonstrated in the Grenfell Tower Phase 2 Report.
It will therefore be important for both the professional and the individuals appointed by the professional to the project team to be competent (and to continue to review this as the project progresses). Such competency will need to be capable of demonstration by both the professional organisations and the individuals.
The Building Regulations etc. (Amendment) (England) Regulations 2023 define organisational capability as having the appropriate management policies, procedures, systems and resources, etc. in place. Processes (amongst other things) to demonstrate this capability should therefore be put in place by professionals working on a relevant project. When carrying out the dutyholder roles of a Designer and/or Contractor, there is also a general requirement for competence.
Given the definition of organisational capability, it will also be important that the professional has policies and processes in place in respect of the BSA. This should demonstrate competence generally and in relation to a specific project, and set out how the professional will approach the BSA and the dutyholder roles.
Competency will need to be assessed on a project-by-project basis, and we suggest that records of competency are maintained by individuals working on a relevant project. The professionals should carefully consider these records at the outset and before commencement of a project, with a view to ensuring that the appropriate (and competent) staff are appointed to the project team in question. In some instances, the contract may contain specific requirements in respect of competency, together with notice procedures (i.e. if there is a change in competency within the project team) and associated termination grounds benefitting the Client. Other clients are seeking competency declaration documents, which must be carefully reviewed by reference to the contract and project on a case by case basis (especially since some of these are more onerous than the BSA’s requirements).
It is important note that the competency requirements also apply to the appointment of subcontractors and subconsultants. Therefore, it is good practice to complete appropriate due diligence (including on financial stability, competency and insurance) and to expressly manage this when negotiating future subcontracts.
Limitation periods
As a result of the implementation of the BSA, there have also been changes to the limitation periods in which claims can be brought by one party against another. Two notable changes are set out below. Whilst not the focus of this article, given the importance of limitation periods, we have included comments on the limitation period changes below by way of a reminder.
Section 1 of the Defective Premises Act 1972 (in effect)
The BSA has also had the effect of extending the limitation period in respect of when a claim can be brought under Section 1 of the Defective Premises Act 1972. The Defective Premises Act 1972 imposes duties on a person “taking on work” in connection with the provision of a dwelling or any part of a relevant building (a building consisting of or containing one or more dwellings). The Act requires property developers, professional consultants and contractors to work in a professional or workmanlike manner, to use proper materials, and to ensure that the completed dwelling is ultimately fit for habitation.
The BSA extended the time limitation period for bringing such claims:
- from 6 to 30 years for works completed before 28 June 2022, i.e. this 30 year period applies retrospectively; and
- from 6 to 15 years for future works completed after 28 June 2022, i.e. this 15 year period applies prospectively (applying to both Sections 1 and 2A of the Defective Premises Act 1972).
Section 38 of the Building Act 1984 (not yet in effect)
The BSA extends the limitation period under Section 38 of the Building Act 1984 to 15 years. This limitation period will apply prospectively and so the extended limitation period will only apply to work done after Section 38 comes into force. Section 38 of the Building Act 1984 gives a claimant/party the right to claim damages where they suffer harm because work on a building does not comply with the Building Regulations. This applies to any building to which Building Regulations apply (and not just Higher Risk Buildings).
Whilst Section 38 of the Building Act is not in force as at the date of this article, parties may see limitation periods in contracts referring to Section 38 of the Building Act 1984.
It goes without saying that it is important for all project documents and information to be maintained for the duration of a professional’s liability under a contract. Such documents and information will be invaluable in the event of a claim and may be required for contractual, regulatory or insurance purposes.
In light of the extended limitation periods, professionals should consider revising their document retention policy (particularly if the document retention policy is based on previous limitation periods under statute, which is typically 6 or 12 years). Project teams should be made aware of the document retention requirements under the BSA and applicable contract, such that those requirements are complied with on each project and the relevant documents are easily obtainable if required. Adequate insurance should also be maintained for this increased period of potential liability.
Concluding remarks
Whilst the BSA will apply to a number of construction projects, it may be that we see some of the requirement under the BSA becoming best practice and creeping into all appointments (regardless of whether the BSA applies). This underpins the importance of ensuring that all professionals have a clear understanding of the BSA and how it may apply to each project, along with having policies and procedures in place to enable an organisation to comply with the requirements of the BSA.
It is safe to say that this is a quick moving landscape, and we expect that we may see further changes implemented in due course, particularly following the release of the Grenfell Phase 2 Report and the Government’s response paper issued late February this year. We therefore suspect that there will be further industry movements as the recommendations in the reports are put into play. Needless to say, it will be important that professionals have contractual protections in place in respect of further change, as well as the resources required to meet any further expectations or obligations.
If you would like assistance on the topics included in this article, health and safety, or the BSA more generally, please contact the author of this article.
[1] The duties of a designer are set out in section 11K of the Building Regulations etc (Amendment) (England) Regulations 2023.
[2] Section 11J of the Building Regulations etc (Amendment) (England) Regulations 2023.
[3] The Building (Higher Risk Buildings Procedures) (England) Regulations 2023 – Part 4
[4] The Building (Higher Risk Buildings Procedures) (England) Regulations 2023 – Part 5
[5] For example, see The Building (Higher Risk Buildings Procedures) (England) Regulations 2023 – Part 3
[6] Section 11F of the Building Regulations etc. (Amendment) (England) Regulations 2023
Article provided by Kathryn Eva (Senior Associate at Beale & Co) and Charlie Bayliss (Trainee Solicitor at Beale & Co)
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