While the Building Safety Act 2022 came into effect through secondary legislation in 2023, there has since been some uncertainty in the industry about the accountability of clients, contractors and consultants.
In particular, there has been confusion about the difference between the role of Principal Designer (Building Regulations) under the 2022 Act and the position of the same name under the Construction (Design and Management) Regulations 2015 (CDM 2015).
Industry slow to adopt new roles
The 2022 Act specifically introduced the role of Principal Designer (Building Regulations). The purpose of this is to create a single point of accountability for ensuring the entire design meets the regulations' functional requirements.
All projects have been required to appoint a Principal Designer (Building Regulations) since 1 October 2023, when the revised building control regime came into effect. However, the industry has been slow to comply, given uncertainty about the following:
- understanding the requirements and extent of the role itself
- the competence required to perform the role
- the appropriate fee for the amount of work required
- the extent of professional liability
- whether adequate insurance to perform the role is available and affordable.
There was also widespread confusion, given that the term 'principal designer' mirrors the CDM 2015 dutyholder role, while the language used in the Part 2A amendment to the Building Regulations explaining the functional requirements of the roles is similar in parts to CDM 2015, which requires the respective principal designers to 'plan, manage, monitor and coordinate' their schemes.
Concern remains over design responsibility
The confusion arises from the industry's lack of perspective on the role: it should allow for the similarities in approach, but distinguish between the focus on Building Regulations compliance for the new principal designer role and health and safety matters for the CDM dutyholder.
The fundamental principles of the new role are no different from those of a typical lead designer appointed on a scheme, with the exception of the new procedures put in place under the 2022 Act via The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, Schedule 1 items.
The new building control regime introduced by the act does, however, require the Principal Designer (Building Regulations) to submit a statement that details how the scheme will comply with the Building Regulations.
The requirement for a compliance statement was generally received by the industry with apprehension, given the potential liabilities it placed on them. Although this was introduced to create a single, clear point of accountability for complex designs, it was regarded as a sharp hook on which designers could be hung.
The new regime also requires clients to appoint a Principal Contractor (Building Regulations). As with the new Principal Designer (Building Regulations), this role resembles CDM 2015. However, many of the activities required of the new Principal Contractor (Building Regulations) are considered standard practice by responsible contractors, meaning it is less problematic for them to comply.
Uncertainty remains among insurance underwriters, though, as to whether the market fully understands the role of the Principal Designer (Building Regulations) and its potential liabilities.
The fact that such a designer may remain liable for building safety for up to 15 years under the provisions of the 2022 Act is daunting, for instance.
'The requirement for a compliance statement was generally received by the industry with apprehension'
Proving appropriate behaviours poses problems
In response to the Hackitt review's finding that the lack of a standardised approach to proving competence was detrimental to the quality of construction, especially in higher-risk buildings (HRBs), the 2022 Act requires individuals to declare and demonstrate their competence. Section 35 of the act defines competence as being able to show the necessary skills, knowledge, experience and behaviours.
It is perhaps more straightforward for an individual to demonstrate that they have the correct skills, knowledge and experience, with relevant professional qualifications and evidence of work on similar projects likely to help. Behaviours, however, pose more of a challenge.
Individuals are now actively encouraged to record instances when they have demonstrated exemplary behaviour. But while a surveyor may be able to exhibit these behaviours by evidencing where they have complied with the RICS Rules of Conduct, what about those working in the industry who are unaffiliated with professional bodies?
This is particularly relevant with regard to workers undertaking a professional role within the industry that are not members of any professional body, such as, for example, a surveyor who is not a member of RICS, a non-chartered architect or a qualified control inspector (QCI). QCIs are perhaps the most exposed as they do not necessarily have to be members of an organisation.
An oft-quoted analogy is that you can prove you are a competent and qualified driver but still display appalling behaviour while driving. Therefore, further guidance with regards to demonstrating behavioural competence from government-backed bodies – such as, for example, the recently formed Health and Safety Executive Industry Competence Committee – would be welcomed.
'An oft-quoted analogy is that you can prove you are a competent and qualified driver but still display appalling behaviour while driving'
Frameworks set out competence criteria
In May, BS 8670-1:2024 Competence frameworks for building safety – Core criteria, Code of Practice was published, as a guide to help professionals demonstrate competence.
These criteria are designed to be contextualised in sector-specific frameworks that reflect the appropriate scope and level of competence required for an individual to undertake a defined role, function, activity or task relating to the development of or the management of buildings.
Table 1 and annex A of BS 8670-1 help clarify the behaviours that an individual will need to demonstrate their competence. In addition to the British Standard, other publicly available specifications have been developed for both the role of the Principal Designer (Building Regulations) and the Principal Contractor (Building Regulations), such as PAS 8671 and PAS 8672 respectively.
From a client's perspective, the introduction of PAS 8673:2022 Built environment – Competence requirements for the management of safety in residential buildings – Specification will also prove useful.
Annexes A and B of PAS 8673 provide particularly helpful advice on how to demonstrate and assess competence in client organisations. As industry professionals, we should be familiar with this specification so that we can hold clients accountable and support them where necessary.
Compliance failures can protract approval process
Due to the new procedures introduced by the secondary legislation, the failure to evidence competence or fulfil the role of the Principal Designer (Building Regulations) can have varying degrees of consequence.
In non-residential works of a simple nature, the impact can be fairly minimal. With the introduction of the gateway approval process, though, the impact can be severe when working on HRBs.
Gateway 2 is the stage at which the Principal Designer (Building Regulations) should submit a building control application to the Building Safety Regulator for approval for a new HRB, or for work to an existing HRB.
It is advised that these applications can take 12 weeks for approval of new buildings, and eight weeks for existing HRBs, however a lack of resource within the building safety regime has caused delays to these timescales.
On top of this, any errors or inadequacy in fulfilling the new roles of principal designer or principal contractor – or correctly demonstrating competence – can add significant delays to projects.
Familiarity with new regime will enable engagement
As the industry continues to familiarise itself with the new legislation, lessons and best practice should be shared more widely.
Industry bodies should then become more proactive in outlining competency frameworks as well as learning and development pathways for professionals. Consultants and clients should more actively refer to PAS 8671, 8672 and 8673.
RICS developing dedicated training
RICS global building standards director and fire safety lead Gary Strong says: 'RICS is currently working to launch a Principal Designer (Building Regulations) training course later this year, so members can prove their competence. This training will include guidance and an assessment.
'At present, however, the Ministry of Housing, Communities and Local Government has indicated that it does not see mandatory assessment and registration of competence being legally required in the way it is for the building control profession.'