Changes to the Building Regulations 2010 came into force on 1 October 2023. One of the main changes is the introduction of a new set of rules imposing greater responsibility on clients, contractors and designers to ensure their buildings when completed comply with all relevant building regulations. The new regulations apply to any construction work requiring building control approval, so all manner of healthcare infrastructure projects will be caught, as well as certain categories of work concerning the ongoing facilities management of such infrastructure.
This article introduces the new dutyholder and competency regime (D&C regime) and summarises the changes it will bring for clients, contractors and designers.
The new D&C regime applies to all building work in England, with different rules for Wales. The definition of ‘building work’ in the Building Regulations has not changed, but the new D&C regime also applies to the new category of higher risk building work. The only exemption is very minor work.
The purpose of the D&C regime is to implement tighter control and raise standards of building work. The new obligations are aimed at ensuring building works, including design, are or will be performed by suitably qualified people who are competent to comply with the relevant building regulations.
Projects with building regulation approval that started before 1 October 2023 will continue under the old building regulations, so the new D&C regime will not apply.
Projects where the building regulation process began before 1 October 2023 and substantial building work started between 1 October 2023 and before 6 April 2024 will also continue under the old building regulations.
To ensure the project stays under the old building regulations, the start notice must be given to the relevant local authority, with a copy to an approved inspector if applicable, within the required notice period and well before the 6 April 2024 cut-off date. The start notice period is at least five working days for higher risk buildings and at least two clear days for all other building work.
Everyone involved in the design and construction of a building work project is a dutyholder, but there is a hierarchy of dutyholders and dutyholder responsibilities. The person with the greatest responsibility is the client. The client is defined in the new Building Regulations 2010 as the ‘person for whom the project is carried out’. In a healthcare context, this is likely to be the NHS trust, operator or equivalent body procuring the work.
The client has overall responsibility for both the building work and design. The client must ensure that the building when constructed complies with all relevant building regulations. The client must “make suitable arrangements for planning, managing and monitoring a project (including the allocation of sufficient time and other resources) to ensure compliance” with all relevant building regulations, and clients must keep those arrangements under review throughout the project.
The D&C regime introduces the roles of principal designer and principal contractor. These are separate to the roles with the same names established by the Construction (Design and Management) Regulations. If there is more than one contractor working on a project, or it is reasonably foreseeable that there will be more than one contractor, then the client must appoint in writing a designer with control over the design work as the principal designer, and a contractor with control over the building work as principal contractor. The appointments must be made before the construction phase begins.
The principal contractor is responsible for ensuring the building work complies with all relevant building regulations. The principal designer is responsible for ensuring the design will result in a building that complies with all relevant building regulations when constructed.
The principal contractor’s duties include responsibility for planning, managing and monitoring the construction work, and ensuring other contractors appointed to work on the project are suitably qualified. The principal designer’s duties in relation to the design are similar.
Other contractors, including designers, working on the project are also required to ensure their work complies with all relevant building regulations and that they co-operate with others on the project.
Standards of competence apply to all dutyholders, that is, all individuals and to organisations involved in building work or design for the project.
Individuals must have the skill, knowledge, experience and behaviours necessary to carry out building work or design in accordance with all building regulations that apply to the project. ‘Behaviours’ include the ability to comply with the relevant building regulations and refusing to carry out building work or design work that does not comply with any relevant building regulation. It also means co-operation with other persons in relation to the work and refusing to carry out work beyond their skill, knowledge or experience, and asking for assistance where necessary.
Organisations that carry out building work or design must have the organisational capability to carry out building work or design in accordance with all building regulations that apply to the project. ‘Organisational capability’ includes:
The Royal Institute of British Architects describes the amendments introduced into Building Regulations 2010 as ‘arguably the most important regulatory change in the industry since the 1980s’ introducing ‘more stringent project oversight with clear accountability for the safety of Higher Risk Buildings (and non-Higher Risk Buildings).’
The D&C regime makes clients ultimately responsible for ensuring their buildings when constructed are compliant with building regulations, and this is likely to impact the contract arrangements for building work.
From a tendering and contracting point of view, clients should firstly consider how best to manage the increased due diligence required under the regulations for all entities engaged on a project. This should then be followed through to the contract terms themselves, with suitably robust warranties as to competence, experience and capability imposed on the appointed contractors and designers.
On the other side of the equation, contractors and designers will benefit from enhanced scrutiny of client appointment terms moving forward, to check that the imposed standards of care and levels of liability are fair and appropriate in the context of a vast and complex new system of regulation.
If you require advice on any of the issues raised in this note, please contact our construction and infrastructure team.
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