The new regulatory regime for the landmark Building Safety Act (BSA) comes into force in England on 1 October 2023 and will apply to all projects subject to Building Regulations apart from some excluded minor works.
Some small practices whose work is limited to domestic projects (as well as small projects) had assumed that the act would not materially affect the way they work, as they have no involvement with ‘higher-risk buildings’ that will be subject to a number of new regulatory obligations, such as gateway approvals by the new Building Safety Regulator. This is not the case.
New dutyholder roles for clients, designers, Principal Designers, contractors and Principal Contractors – including a requirement that designers should be competent to take on any design work they are contracted to deliver – will apply to domestic projects as well. This means that all practices have to prepare for the new regime that arrives, at the time of writing, in two weeks’ time.
What are the new duties for designers?
All designers will have to adhere to five new designer duties and two new general duties as set out in Part 2A of the building regulations (see regulations 11J and 11K in the new amendment).
Some of these duties can be carried out by straight forward conversations and regular clear communications with other dutyholders, following standard best practice project management processes. The rest are the core design function that architects, who work through all stages of domestic projects, should be doing anyway. These new duties codify best practice design process into statutory requirements with an increased focus on compliance.
Members are advised to ensure they are competent to carry out these duties as failure to competently discharge them could now result in a gaol term of up to two years.
The RIBA Health and Safety Test is being updated to cover this area and will be available for members in October. The RIBA encourages all members to take this test to help build their confidence in the new regulatory regime and provide proof to clients they meet the designer competence requirements.
What does the role of Principal Designer mean in smaller practices?
The circumstances in which a Principal Designer is required under the Building Safety Act are similar to those under the CDM regulations, which should provide some comfort.
For example, if only one contractor will be appointed on a project, there is no need for a separate Principal Designer to be appointed as that contractor will automatically take on the role.
As with the CDM regulations, the definition of contractor is broad though – it includes anyone carrying out, managing or controlling building work. This means that a Principal Designer will be required on a large number of domestic projects (e.g. if the contractor appoints a subcontractor or if more than one trade is involved). Again, this is the same as the position under the CDM regulations.
The key change for small practices is that a project subject to Building Regulations, which involves more than one contractor, must have a Principal Designer under CDM regulations and under the BSA (which may be the same entity/individual).
The BSA Principal Designer's duties include (among other things) coordinating design work so that all reasonable steps are taken to ensure that the design is such that if built, the building works to which the design relates are in accordance with all relevant requirements (i.e. compliant with regulations).
The Principal Designer, subject to competence and organisational capability, may be the same entity or individual under duties under both CDM and Building Regulations. Indeed, the existing CDM Principal Designer can be appointed as BSA Principal Designer following certification by the client that this is the case.
If a domestic client does not appoint a separate Principal Designer in writing when required, then the designer in control of the design phase of the project will automatically become the Principal Designer by default.
What are the other similarities between Principal Designers under CDM and the BSA?
This alarmed some practices, particularly those that have not been acting as Principal Designer for CDM regulations (i.e. managing the health, safety and welfare of construction projects) as the new duties and requirements may at first appear a daunting prospect.
That's not to say the legislation isn't very technical and requires time to break down what the impact is to you as a practitioner and/or organisation, but the last couple of years have seen a gradual introduction of the likely expectations. So, while the detail is now available, the principles that underpin these changes shouldn't come as a surprise.
In addition, this “automatic appointment” of the Principal Designer is exactly the same as the position in relation to the Principal Designer role under CDM regulations. Architects should therefore discuss with the client at the outset of any relevant projects the approach to appointing a Principal Designer under the BSA and CDM.
There has also been concern voiced at RIBA Member forums that domestic clients especially may not appreciate that the extra duties architects must take on as Designers and Principal Designers come with skills, knowledge, experience and time that must be reflected in design fees.
This is something that can be mitigated by explaining to the client as clearly as possible what the impact of the Building Safety Act is on their project and the services that will be required, as well as the benefit of the increased focus on safety coordination as a result.
This will help architects comply with their duty to ensure clients are aware of their duties under the BSA before starting work and also justify any impact on fees.
RIBA will be launching a Principal Designer Register in the autumn along with competency tests to inform the role. It will also update its Understanding The Building Safety Act guide this autumn, and launch a Principal Designers’ Guide in the New Year.
How do architects interact with clients under the new regime?
With important Principal Designer competency tests and registers in the pipeline, it’s fair to ask: what do we do in the meantime when it comes to addressing clients?
The absence of model client care letters and contractual clauses regarding duties under the act is a result of enabling legislation appearing unexpectedly in August, allowing the government to stick to its timetable for implementation on 1 October.
Construction lawyers – as well as the majority of the built environment - are still pouring over the details of the legislation and working on their industry guidance, says Andrew Croft, Partner at construction law specialist Beale & Co.
Likewise, amendments to standard appointment documents by RIBA, the Joint Contracts Tribunal and others are being worked on as a matter of priority but are still some months away.
However, as above, RIBA encourages members to liaise with a legal advisor, if in doubt, to help ensure their current and immediate contract needs are sufficiently bridged. Chartered Members can be referred to specialist practice consultants on legal and technical issues for free 15-minute consultations through our Membership Services Team on +44(0)20 7307 5355 (lines are open Monday to Friday, 9am to 5pm. Please be ready with your membership number).
Andrew goes on to suggest that architects should be explaining to domestic clients that the new (Designer and) Principal Designer role is a regulatory requirement of prescriptive duties and that if they are not paying the architect to do it, they will be paying someone else.
If effectively subcontracted by the architect, the architect will still retain the statutory responsibility for performing the Principal Designer role (including for any enforcement actions) and would need to be satisfied that the third party has the required competency.
He recommends that fee proposals and terms of appointment set out in the impact of the act on the project, the client’s key duties and the architect’s extended duties under the act, much as they would have under CDM previously.
In addition, the additional designer duties should be considered and the Principal Designers’ duties are spelt out when scoping fees (with an anticipated program for these duties that aligns with the project, to manage any project delays or extensions of time).
The Principal Designer role and competence
It’s important to remember that architects do not have to be on the RIBA Principal Designer Register before they take on the role, but they must have the competence to accept it.
It is likely to be possible for an architect to refuse the Principal Designer role (unless it is automatically appointed as above when working with domestic clients) by declaring a lack of competency or in-house capability, Andrew adds, but that would hardly instil confidence in the client, who might then be tempted to look elsewhere for a lead designer.
On the other hand, the practice must be satisfied that it does have the skills and experience to carry out the Principal Designer role and must declare any competence limitations, or support needed.
While we are confident that most RIBA Members working on domestic projects are capable carrying out the new and existing principal designer duties, if members think they may not have the competency to carry out the role and are not able to build that competency though some form of training in time, they should ensure another organisation is appointed to perform the PD role before they start work, or refuse the project if necessary.
Elsewhere, architects are advised to talk to their insurers to confirm that the Principal Designer role is within the scope of their PI cover. The RIBA Insurance Agency has confirmed that if cover has been provided through them (and a specific exclusion has not been made regarding the role) then they will be covered, but they do suggest contact is made to be sure.
What next and transitional arrangements
Competency and regulatory compliance are at the heart of the new safety regime. For architects who have been acting as Principal Designers for CDM, compliance-checking systems will already be in place and the new regime should present less of a hurdle.
For the purposes of compliance under the act, practices will be extending these compliance processes by adding another layer of due diligence to design work, specific to Building Regulations.
Submissions to building control will in future rely on the designer’s justification of compliance, rather than designers seeking design input from building control to meet compliance.
Architects (and the wider design team) who have, in the past, used the building control application process to refine design details will have to ensure full compliance with Building Regulations prior to submission.
The primary aim of the act can be seen as tightening up regulatory compliance generally, both at early design stages and at the construction stage to ensure that compliant design is what is actually built on site.
The Principal Designer must, therefore, continue to monitor compliance and not allow any design changes that might undermine compliance without proper critical appraisal and not be afraid to challenge the designers accordingly.
RIBA is advising all members to understand the impact of the building safety legislation on their practice in the run-up to October implementation and to update processes and procedures accordingly.
Practice principals should ensure that they understand any limits to competency for projects likely to be undertaken and implement the right training and development of staff.
It is also important to look at the transitional arrangements and impact on currently approved schemes and works commencing during this period in the next six months to 6 April 2024 (that includes the new lapse of consent changes that have been introduced).
Thanks to Andrew Croft, Partner, Beale & Co.
Text by Neal Morris and the RIBA Practice team. Send us your feedback and ideas.
As part of the flexible RIBA CPD programme, professional features count as microlearning. See further information on the updated RIBA CPD core curriculum and on fulfilling your CPD requirements as a RIBA Chartered Member.