With just weeks until new legislation comes into effect, architects and clients are scrambling to get ready, writes Andrew Mellor
The legislation for Dutyholders, related to the Building Safety Act, has been included in amendments to the Building Regulations rather than in new secondary legislation as might have been expected given the draft Dutyholder Regulations published in 2022 (although subsequently withdrawn). The Building Regulations etc (Amendment) (England) Regulations 2023 now amend the Building Regulations 2010.
The changes come into force on the long expected date of 1 October 2023, however the new legislation (or amended legislation as it is now) was expected to be published months ago and not 6 weeks before the changes apply. The industry has at least got clarity that the new roles of Principal Designer (Building Regulations) and Principal Contractor (Building Regulations) will now be introduced.
These principal dutyholder roles will apply to all projects where building work is being undertaken and the Building Regulations apply. From a house extension, to large developments across multiple sectors.
We have seen an awakening of architectural practices in recent months and certainly within the last two weeks to the new requirement, with an expectation that clients will soon be asking architects to take on the new Principal Designer role. Many practices therefore are scrambling to understand what the defined duties are in the legislation, and how they may develop a new service, train staff, implement procedures, calculate fees and get insurance cover for a service that may be required immediately on some projects.
Interestingly, clients, who are legally required to appoint this new Principal Designer are seemingly not as awake to the need for the role as the architects. Perhaps they have not yet fully grasped the enormity of the proposed changes, not just the Principal Designer role, but of course the wider impacts on their projects especially those including a High Risk Building.
Buildings where a Building Regulations application or an initial notice is received by the local authority by 1 October and start work (the definition of start on-site for new High Risk Buildings differs to other building types) before 6 April 2024, will avoid the need to have the new Principal Designer and Principal Contractor.
The new Principal Designer role presents risks to those undertaking it, especially as some of the legal duties are likely to be uninsurable
The 1 October is a Sunday, and it is not only the principal dutyholder roles that can be avoided by meeting these transitional arrangements especially for High Risk Buildings. Will we therefore see clients and consultants working on the Saturday to get applications submitted online to local authorities?
Like the rest of the industry, the insurance market is yet to fully understand the new roles and it seems very likely that no consultant can claim yet to have professional indemnity insurance for the Principal Designer (Building Regulations) role. For High Risk Buildings, the Principal Designer has to legally be appointed prior to the Building Control Approval application being submitted.
It is therefore very feasible, that if insurance cover for the new role is not available soon to architects, then some applications that are programmed for the autumn will slip, with the associated knock on consequences. Especially as the role requires services to be undertaken by the Principal Designer much prior to the application submission, to ensure duties are discharged and the application is compliant.
The new Principal Designer role presents risks to those undertaking it, especially as some of the legal duties are likely to be uninsurable. So, architects and other consultants undertaking it will need to ensure that their new service and the associated quality assurance process is fully developed prior to launching their service offer.
With this in mind we are seeing collaboration between practices in the development of the service, so that duties are properly understood, scope of services are aligned and experiences are shared during what is a very tight timeline to launch a new service.
It will be interesting to see how clients respond with regard to appointments. Some developers seemingly plan to undertake the role themselves, others to appoint the Principal Designer directly for the design and construction stages.Others are considering that the Principal Designer will be novated to the contractor or that the role will transfer via the contractor to a second consultant at the start of RIBA Stage 4.
We await the interpretation of the legislation by lawyers to advise the industry on the possible compliant routes to the client for appointing the new Principal Designer. It may all come down to the interpretation of who is the client. The definition of a client in the legislation is ‘any person for whom a project is carried out’.
Is there a way therefore for the Design and Build contractor to be a client (and the Principal Contractor), which would lead to it being able to appoint the Principal Designer at the detailed design stage? Hopefully the situation will become clear to us all in the next four weeks – four weeks that are going to be very busy for everyone considering the new Principal Designer role.
Andrew Mellor leads the development consultancy team at PRP. The practice has been advising the Department for Levelling Up, Housing and Communities and conducting research around policy and building regulations.