Building Safety Regime – one year on: what do clients really need to know?

As discussed in our previous article, on 1 October 2023, several changes to the Building Regulations 2010 (the “Building Regulations”), including a new dutyholder regime, were introduced. Over a year on from the changes coming into force, the role of dutyholders remains a key topic amongst those in the construction industry and many are grappling with what practical steps they need to take. In this article, we will discuss how “Clients” can navigate their duties under the “new” regime to ensure compliance with the Building Regulations and avoid the liabilities that attach to non-compliance (ranging from financial penalties to criminal liability) as well as unwelcome project delays.

When does the dutyholder regime apply?

A common misconception is that the regime only applies to ‘higher-risk buildings’ (“HRBs”). Don’t be caught off-guard – the dutyholder regime applies to all building work, save for minor works (as more particularly set out in Schedule 4 of the Building Regulations), irrespective of whether or not the building works relate to a HRB.

What is the dutyholder regime?

In short, the dutyholder regime places legal obligations on those who procure building work and are involved in the design and construction of building work, as well as those who are responsible for managing structural and fire safety in occupied HRBs, to ensure a focus on building safety. Whilst the dutyholder roles are namesakes of the existing roles of “Client”, “Principal Designer” and “Principal Contractor” under the Construction (Design and Management) Regulations 2015 (“CDM Regulations”) they are separate and distinct under the Building Regulations. So, whilst the same person or organisation may act as the relevant dutyholder under both the CDM Regulations and the Building Regulations, they must be competent to do so. In this article, we will focus on the role of the “Client”.

Who is the “Client” and what is their role?

Under the Building Regulations, the Client is “any person for whom a project is carried out.” This means any person that has control of the way the project is procured, managed and funded. As with the CDM Regulations, there may be more than one Client – this is likely to be the case on complex construction projects, where there are several interested parties such as the developer, the funder, the landowner etc., all of which meet the definition of a person for whom building work is done. In these circumstances, the parties can agree which party is to be treated as the lead “Client” for the purposes of the Building Regulations. The lead “Client” will hold the primary responsibility to ensure compliance with the Building Regulations including:

• making suitable arrangements for planning, managing and monitoring a project (including allocation of sufficient time and other resources) and ensuring such arrangements are maintained and reviewed throughout the project;
• where there is more than one contractor, appointing a Principal Designer (to plan, manage and monitor design work to ensure that the design is in accordance with all relevant requirements) and a Principal Contractor (to plan, manage and monitor the building work to ensure that it complies with building regulations) for the purposes of the Building Regulations;
• verifying all appointed professionals are competent to fulfil their roles;
• obtaining approval of plans by either the local authority or an approved inspector before construction begins;
• supplying designers and contractors with health, safety and environmental information about the site; and
• providing a record of the completed building e.g. as-built drawings and fire safety strategies at the end of construction, including deviations from the original plans.

However, it is important to note that all “Client” parties (not just the lead Client) are required to:

(i) provide building information to every designer and contractor on the project – in practice, that entails providing information about existing conditions, hazards and constraints of a site that may affect design and construction having a keen eye on fire safety and structural stability; keeping logs of any inspections to verify compliance with approved plans and the Building Regulations; documenting any changes to design;

(ii) cooperate with others working on or in relation to the project to enable others to fulfil their duties under the Building Regulations;

and, in respect of HRBs,

(iii) provide information to designers and contractors working on the project to make them aware that the project includes HRB work (including the nature of such work); and

(iv) periodically review the building and design work to identify whether it is HRB work.

The Client’s duties are set out under Regulation 11A of the Building Regulations.

Whilst a Client can delegate some of their dutyholder functions e.g. by employing a project manager to carry out functions and provide advice on duties, they cannot contract out of the “Client” duties. It is therefore crucial that the Client satisfies themselves that those they are appointing are competent to carry out their roles. It is also important to note that if a Client fails to make the dutyholder appointments, it must fulfil those duties. However, a Client will only be able to proceed with non-HRB works or make a building control application for an HRB where it can demonstrate it is competent to perform those roles.

Practical steps

At the outset of a construction project and during and after construction, there are several proactive steps the Client should take to ensure it is able to fulfil its dutyholder responsibilities under the Building Regulations:

• Identify dutyholders: consider at an early stage who the dutyholders for the project are and what responsibilities those parties have under the Building Regulations. This is essential in enabling dutyholders to sign off their respective declarations of compliance following completion of the project. The Client will be required to sign a declaration, confirming that to the best of its knowledge, the works comply with the applicable parts of the Building Regulations and the Principal Designer and Principal Contractor will be required to sign declarations confirming that they have fulfilled their duties under Part 2A of the Building Regulations.
• Properly investigate the competence of parties being appointed: look for appropriate qualifications, current certifications, experience, and references as evidence of the competence of those parties. Clients should also refer to the relevant PAS standard – PAS 8671 sets out the skills required for Building Regulations Principal Designers and PAS 8672 for Building Regulations Principal Contractors.
• Provide building information: share site details e.g. site plans and surveys, with the designers and contractors and set up regular meetings to review information flow and team co-ordination to review compliance
• Keep written records:

– of how the Client has satisfied itself that those it engages have the required competencies prior to appointment, and that the Principal Designer and Principal Contractor are able to fulfil the general duty to plan, manage and monitor the general competence requirements and specific competence requirements as set out in the Building Regulations;

– of the completed building including structural information and fire strategies, as well as completion certificates from building control or approved inspectors; and

– for HRBs, the ‘golden thread’ information (digital record of the building’s design, construction and safety).

• Complete formal training: to demonstrate competence as a “Client” and to upskill all stakeholders on fulfilling dutyholder responsibilities.

Failing to meet the “Client” responsibilities under the Building Regulations may result in penalties, criminal liabilities, project delays and remedial works. It may also impact building valuations and insurances. It is therefore key for Clients to understand their obligations.

At Burges Salmon, our lawyers have experience across all aspects of building and fire safety law and offer client focused advice and solutions across a complex and evolving statutory and regulatory environment. If your organisation requires any advice on any aspect of the dutyholder regime, please do get in touch.

This article was written by Richard Adams, Nia Stewart and Joanna Rogers.