What do I need to know about England’s new dutyholder regime under The Building Regulations 2010?

From 1 October 2023, The Building Regulations etc. (Amendment) (England) Regulations 2023 introduce a new regime (“dutyholder regime”) to works that are undertaken in England under The Building Regulations 2010 (the “Building Regs”). Contravention of these provisions is a criminal offence which can result in an unlimited fine and possible imprisonment up to 2 years.

The Building Regs apply to a wide range of works, including the erection or extension of, or material alterations to, a building; the provision of a controlled service or fitting to a building; works amounting to a material change of use; cavity wall insulation; underpinning; work relating to a change in energy status or thermal elements; and consequential improvements to energy performance.

For those familiar with the Construction (Design and Management) Regulations 2015 (the “CDM Regs”), there are similarities in the terminology and obligations upon dutyholders, albeit that these new regulations promote adherence to the Building Regs and many of the duties are more onerous.

Transitional arrangements

Although these provisions take effect from 1 October 2023, the new dutyholder regime does not apply to building work that has already started. It also does not apply to building work where plans or a building notice were deposited with the local authority before 1 October 2023, provided that the building work also starts before 6 April 2024.

The dutyholders

The dutyholder regime applies to anyone who can be held accountable for building safety during the design and construction phase of the works. This includes the client, the principal contractor, the principal designer, the contractors and the designers.

Each dutyholder can be an individual or an organisation, provided that the organisation has capacity to fulfil their duties. Organisational capacity means having appropriate management systems, processes and policies in place to carry out its functions and having the capability to ensure that its staff have the appropriate skills, knowledge, experience and behaviours. If the prescribed individual is in training, they must be supervised.

The terms “client”, “principal contractor” and “principal designer” mirror those used in the CDM Regs. It is possible for the same party to fulfil multiple roles under the dutyholder regime and the CDM Regs, provided that they have the competence to do so.

General competency requirements

All dutyholders are under an obligation to:

• plan, manage and monitor the design/work carried out so that it complies with the Building Regs;
• co-operate with others to ensure that the work is in compliance with the relevant requirements (such as by sharing information, communicating effectively and supporting each other in fulfilling their regulatory requirements); and
• only appoint people and accept work where they have the skills, knowledge, experience and behaviours necessary to carry out the building work they are engaged to do.

Those familiar with the CDM Regs will recognise that there are equivalent obligations to demonstrate “skills, knowledge and experience”, however the obligation to demonstrate the requisite “behaviour” is a new concept. 

The additional requirement of appropriate “behaviour” recognises that there must be a practical and ongoing demonstration of good practice. The term includes: (i) complying with the relevant requirements, including refusing to carry out any building or design work which is not in compliance with any requirement (ii) cooperation with others in relation to the work (iii) refusing to carry out work which is beyond their skills, knowledge and experience and (iv) asking for assistance where necessary.

The client

The client is any person for whom a project is carried out. It is likely to be the developer or building owner, but this may not always be the case.

Like the CDM Regs, the new dutyholder regime does not apply to domestic clients. Instead the principal contractor or the principal designer is to decide who takes on the duties in respect of these works. Also, where there is more than one client, the clients can agree in writing which one will be treated as a client for the purposes of the dutyholder regime.

The requirements on the client include:

• making suitable arrangements for the planning, managing and monitoring of a project (including appointing those with appropriate competencies to do the work and the right systems to ensure compliance with the Building Regs)
• appointing a principal designer and principal contractor (where there is more than one contractor (which includes sub-contractors) working on the project)
• providing information to every contractor and designer
• co-operating and sharing information and
• appointing a replacement principal designer or principal contractor if either appointment ends before the end of the project.

If a client fails to appoint a principal designer or principal contractor, it has to fulfil those duties itself in addition to its own duties.

The dutyholder regime catches a wide range of clients who may have different levels of experience in procuring construction works. It is not possible for a client to contract out of its responsibilities; if it fits the criteria it has to undertake this role. The general competency requirements put some onerous obligations on the client and the same standards apply regardless of how experienced the client is. 

Principal designer and principal contractor

The principal designer is the designer who is in control of the design work and the principal contractor is the contractor who is in control of the construction phase. Each has responsibility for ensuring that the design phase or construction phase (as applicable) complies with the Building Regs and building safety.

In addition to their general duties they must ensure that all designers (for the principal designer) and all contractors (for the principal contractor) co-operate, communicate and co-ordinate their work with the other dutyholders. They must liaise with and provide information to each other and assist the client in providing information to other designers and contractors.

The principal designer must co-ordinate matters to ensure that, when built, the design complies with the Building Regs. The principal contractor must (i) plan, manage and monitor all building work (ii) co-ordinate matters relating to the building work to ensure it complies with the Building Regs and (iii) take reasonable steps to ensure that they and the other contractors communicate and co-ordinate their work with others so that it complies with the relevant requirements.

Designers and contractors

Designers and contractors must not start work unless they are satisfied that the client is aware of its duties. Designers must take reasonable steps so that their design, when built, will comply with all relevant requirements; contractors must ensure that their building work complies.

Designers and contractors must take reasonable steps to provide sufficient information about the design, construction and maintenance of the building to assist the client and others to comply with all relevant requirements. They must each notify the client as soon as they cease to be competent in fulfilling their roles.

Designers must consider other design work which directly relates to their design and report any concerns to the principal designer. The contractor must provide each worker under their control with appropriate supervision, instructions and information to ensure that the building work is in compliance with all relevant requirements.

Compliance declaration

The client, the principal designer and principal contractor must sign a compliance declaration within 5 days of completing the work. The client’s compliance declaration states that to the best of its knowledge the work complies with all applicable requirements of the Building Regs. The principal designer and principal contractor are obliged to state that they have fulfilled their duties.

Additional duties for higher risk buildings

Where the building work relates to a new higher risk building[1] or work at an existing higher risk building, there are a number of additional responsibilities on dutyholders.

Prior to appointment of any person to do any building or design work, the client must investigate whether, within the previous 5 years, the proposed appointee has had a “serious sanction” and whether this calls into question their competence in relation to the works in question. Examples of a serious sanction include: non-compliance with the Building Regs or other regulatory requirements relating to structural or fire safety or convictions under relevant fire safety, health and safety or building legislation. The client must keep a written record of the steps it has taken to satisfy itself that the persons appointed have sufficient competency to perform their roles, including the investigation into their previous conduct and how this was considered.

The client must provide this information to the building safety regulator (“BSR”) when making the application for building control approval (Gateway 2). The client is required to submit a signed competence declaration stating that it has taken all reasonable steps and is satisfied that the appointed dutyholders meet the competence requirements. For this reason, the client is required to appoint the principal designer and principal contractor before making this application.

In addition the client must ensure that all designers and contractors are aware that they are working on a higher risk building project and keep building work under review in case it is or becomes higher risk building work.

The principal contractor and principal designer are obliged to report safety occurrences to the BSR, by having a mandatory occurrence reporting system for prompt reporting. Safety occurrences mean an aspect of design relating to the structural integrity or fire safety of a higher risk building that would, if not remedied, present a risk of a significant number of deaths or serious injury to a significant number of people.

If requested to do so, all designers must advise the principal designer or the client, and contractors must advise the principal contractor, on whether any work or design they are undertaking relates to higher-risk building work.

Next steps

There are similarities between the dutyholder regime and the CDM Regs. This will encourage early familiarity and similar contract drafting concerning the roles and responsibilities. However, there are some key differences, in particular, the need to demonstrate appropriate “behaviour”, the compliance declaration from the client, principal designer and principal contractor and the additional requirements for higher risk buildings. Overall, there is an increased emphasis on ensuring that those carrying out the roles have the requisite competence to fulfil their duties and obligations. It is therefore paramount for those caught by this regime to upskill into their new positions and adopt greater care and consideration over the requisite requirements of the Building Regs.

Written by Gemma Irving.

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