Are you ready for yet more changes to the Building Regulations?

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The new Dutyholder Regime under the Building Regulations has arrived via the Building Safety Act 2022, which amends the Building Act 1984. It will be implemented under various Regulations, including the Building Regulations (Amendments) (England) Regulations 2023 and the Building (Approved Inspectors etc Review of Decisions) Regulations 2023.

The new regime will have a major impact on construction projects. Here we provide a brief overview of some of those changes and the implications for everyone involved.

When are the changes in force?

The two sets of Regulations came into force in October 2023 but some of the key changes will become effective from April 2024.

What are the key changes?

  • The key changes include new requirements and competencies for Client, Principal Designer (PD) and Principal Contractor (PC) dutyholders, which are separate appointments required under the Building Regulations. Despite having the same terminology, these appointments are separate from, and in addition to, the Construction Design and Management (CDM) Regulations.
  • These requirements apply to all buildings, not just High-Risk Buildings (HRB) (i.e. buildings which are 18m+ with residential elements).
  • New competencies and an approved register for building control professionals will apply to all projects, not just HRBs.
  • Developers will need to demonstrate they have verified the competence of their Principal Contractor and Principal Designer.
  • There are exclusions for minor works, but otherwise everything else will fall under the ambit of the changes.
  • There are changes to some building control and decision-making processes.
  • There are rights of appeal to the first-tier tribunal in relation to some of the changes to building control decision making, but the rules are different for HRBs and non-HRBs.

What does it mean for developers?

  • Client, PD and PC roles have the same terminology but different duties and competencies under the new Building Regulations compared with those under the existing CDM Regulations. Appointments will need to reflect this to avoid difficulties. Developers should review all current and imminent appointments from this perspective.
  • For new projects, these appointments will need to be made very early in the design process. For HRBs there will need to be a Fire Safety submission as part of the planning application. Developers should ensure these requirements are reflected from the outset.
  • For existing projects, such as cladding remediation works, developers should check that existing PD and PC appointments properly reflect the new requirements. Revisions may be needed.
  • Developers should ensure that new contracts and appointment documents are updated to reflect the changes. Do not use outdated documentation.
  • The competency requirements under the Building Regulations and the CDM Regulations are different. Whilst most architecture practices may be able to carry out both PD functions, in other cases it may be difficult to demonstrate joint competence, so separate appointments may be required.
  • It is not yet clear how this should be addressed in the context of a design and build contract. Logically, the contractor should carry out both roles if it is competent to do so, but it is not yet evident whether a contractor can sub-contract this function if it does not have the competence in-house.
  • Both the PD and PC are required to give notices at various stages. Developers should build these into their processes.
  • For transition buildings under Gateways 2 and 3, developers should check the appointed building control approver is on the new register. This is particularly important because the project will need to be re-notified if the appointed building control professional is not yet on the approved register as the project will lose its transition status.
  • There is concern as to the future capacity of Local Authority Building Control due to the new certification requirements and the timescales of the HRB Gateway process. This could delay certain approvals.
  • Costs of the BSR under the Gateway Process are not established, but will be charged on a time basis, so developers will need to make sufficient allowance for this.

Although the new Regulations arrived last autumn with very little fanfare, the impact is going to be far-reaching. We recommend a thorough review of existing contract documentation by all those involved in a project, as well as looking at the appointments on each project to ensure compliance. Failure to comply with the new regime could put the project in jeopardy, and in some cases could lead to enforcement, including criminal prosecutions.

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