Members continue to share their questions with RIBA about the new Building Regulations regime, recently introduced in England. There are still concerns about what the new statutory dutyholder roles entail and how the new regime will impact their customary working practices.
In a recently staged webinar – In conversation: Building Regulations and Designer Duties – an expert panel discussed frequently asked questions. The panel comprised:
- Alex Tait, RIBA’s Director of Practice
- Dieter Bentley-Gockmann, Director at EPR Architects
- Colin Blatchford-Brown, a specialist CPD provider on the Building Safety Act who was until recently the HSE’s Operational Policy Lead for Gateways & Building Control
The full webinar is currently available to members via RIBA Academy. Read below for an amalgamation of answers from Alex, Dieter, and Colin, with additions by the RIBA Practice team.
How do the duties of Designer and Principal Designer differ in the new regime?
Dutyholder roles became part of Building Regulations in England on 1 October 2023 for all work subject to building control. An important aspect of the new regime to understand is that statutory requirements on dutyholders are effectively codifying and formalising through:
- duties and notifications
- what would have been good practice prior to the regulatory changes for all buildings
- some more detailed requirements for higher-risk buildings (HRBs)
Designers must understand that they have a responsibility to ensure, taking reasonable steps, that whatever they design should be compliant with Building Regulations, if built as designed. This is irrespective of the work stage or the project.
It is their responsibility to understand the regulations that apply; they must not pass responsibility down the procurement chain. What is new is their relationship with the project’s building control body.
The changes to the Building Control regime place emphasis on the Designer to satisfy compliance with the relevant requirements of the Building Regulations, rather than utilising the building control body as a route to compliance.
RIBA is being asked whether this will result in a further specialist on regulations or Building Control being brought into the design team. Generally, the new regime should not require a further specialist as the Designers should have this competence or they should question their ability to accept the project work.
That said, continuous professional development may also be utilised to gain up-to-date knowledge and information. There are occasions where additional specialist input may be necessary (for complex projects for example) and it is still important to maintain open dialogue with your building control body, so don’t see them as unapproachable.
The Principal Designer’s role is to plan, manage and monitor design work. This will involve making sure there is good communication, coordination and collaboration between design team members so that the project can comply with regulations.
They will later need to liaise with the Principal Contractor, sharing information relevant to the planning, management and monitoring of the building work. This includes organising the coordination of building work and design work for the purpose of ensuring compliance with all relevant requirements. This could be achieved through site meetings, project meetings or progress reports.
While Designers, including specialist consultants such as the structural engineer or fire engineer, have their own responsibility to achieve compliance, the Principal Designer needs to ensure that everyone is talking to one another and sharing information, so that the project as a whole will be compliant.
The Principal Designer must take all reasonable steps to fulfil their duties under Part 2A (dutyholders and competence) of the regulations. They are not responsible for discharging compliance of the design work (which is for the Designer to evidence) or the building work (which the Principal Contractor is to fulfil).
They should, however, be satisfied that individual designers are competent, including any external specialist consultants such as fire safety or mechanical and electrical (M&E) services.
Furthermore, they should show the integrity and knowledge, to challenge design work and Designers, should the work not be seen as compliant or coordinated.
Who are the professionals expected to carry out the Principal Designer role, and can this be regarded as an extension of the CDM Principal Designer’s role?
Regulations do not stipulate who should undertake the role of Principal Designer – the focus is ‘competence’ so that duties are carried out effectively.
As the Principal Designer is in overall control of design work, the role clearly lends itself to being carried out by the Lead Designer, but to be appointed under CDM and the Building Regulations the individual or organisation must be competent for these roles for the specific project.
Some of the larger developers (or contractors) have said they intend to make the Principal Contractor also the Principal Designer. This is not a problem under regulations, which allow for one organisation to fulfil both duties as long as the respective competence requirements are met.
This is also a model likely to be applied to design and build projects, but will be up to the client to define how they intend to appoint the respective duties.
If an architect is carrying out the Principal Designer role but working only to the planning application stage (Stage 3), it is their duty to coordinate the design work up to the end of their appointment. This is to ensure reasonable steps are taken for compliance with Building Regulations.
What is important is that the architect notifies their client that their Principal Designer duties have come to an end and provide a compliance statement on how they fulfilled their duties to that point.
In terms of whether a Principal Designer under CDM regulations can also fulfil the Principal Designer role under Building Regulations, it is entirely a matter of competence.
The Principal Designer needs to be confident that they understand and can carry out their duties, which are to plan, manage and monitor design work. This also includes understanding the relevant requirements of Building Regulations specific to the project.
Historically, the professionals that formerly carried out the CDM Coordinator role prior to the CDM Regulations 2015 often came to the role from a health and safety or project management background. Therefore, it is unlikely that many of these CDM experts will have the regulatory skills, knowledge, experience or behaviours to meet the provisions under the new regime (that architects have).
It is important that architects refuse to carry out any work, including the Principal Designer role if that work exceeds their competences. Again, this is no different to how a chartered architect should have been working in the past.
What are the client's duties and responsibilities in the new regime?
Building Regulations make the client responsible for the appointment of a Principal Designer and Principal Contractor. If a client fails to make these appointments, they must fulfil the duties themselves. However, it would take an experienced client to choose to take on direct responsibility for compliance (and this does not extend to domestic clients).
For domestic projects, it is a different scenario. If a domestic client does not make these appointments, the Designer in control of that design phase automatically becomes the Principal Designer by default. If there is only one Designer, they are also Principal Designer; if there are multiple Designers, the Lead Designer coordinating the group will be the Principal Designer.
RIBA have produced a Client Care Letter template to support clients understanding their duties. The content covers both CDM and Building Regulations, but naturally, if you are not offering both services, you choose only those that apply. These are separate from the Standard Professional Services Contract which is also being updated to reflect the new regulatory changes.
Clients should always appoint a competent person to undertake work, so there is an expectation they will undertake due diligence by checking against previous projects and ensuring that key people have the right accreditations.
Designers should not accept and start work without knowing that the client is aware of their duties, including their primary duty to ensure that design and construction are carried out in accordance with Building Regulations.
If a client were to instruct you to act in breach of these duties, you have a duty to make sure that does not happen and that no breach of regulations becomes embedded in a project.
Clients must make a declaration at the end of a project that to the best of their knowledge the work is in compliance with regulations, which is a new responsibility. Whereas in the past the client, designer, and contractor would have relied on a certificate of compliance issued by a building control body, the situation is now reversed.
The Principal Designer (and Principal Contractor) must also declare, via the client, to the building control body that they have fulfilled their duties under Part 2A (dutyholders and competence).
Can architects justify extra fees for taking on new responsibilities like the Principal Designer role, even on domestic projects?
Higher-risk buildings (HRBs) now have a new set of procedural and documentation requirements that clearly amount to additional services. For non-HRBs, particularly domestic projects, the new requirements are not very different to what the architect as Lead Designer would have done previously.
It’s more about diligence and record-keeping under the new regime. That said, any additional work - however small - should be resourced properly and architects are encouraged to consider the time and resource it will take to carry out this function and build that into their fee, or possibly itemise it as a necessary service as part of fee negotiation.
What happens to PI cover in the new regime?
Architects expecting to be appointed as Principal Designer should inform their insurer and certainly discuss this with their broker when renewing the policy.
Insurers should be comfortable with designers undertaking both Designer and Principal Designer services provided they are competent to do the work.
Because the new regime introduces a more formal structure for managing and monitoring design work to ensure regulatory compliance, risk should be better managed and better projects should be delivered.
In following the new regime, architects will be able to demonstrate that they are doing their job properly and early signs are that insurers are fairly comfortable about architects working with the new regime.
Will signing completion declarations have an effect on PI cover, especially if the architect has not been on-site?
Building Regulations revisions now require a series of notifications and declarations at the completion stage; the client’s declaration includes statements from the Principal Designer and Principal Contractor that their respective obligations under the regulations have been met.
But this does not add an additional layer of liability. These statements simply confirm that you have fulfilled your duties.
However, architects must be aware of notification requirements. For instance, if your duty as a Principal Designer has concluded midway through a project, a notification to the building control body to this effect will mark the end of your accountability.
Conversely, if you are taking over the role of Principal Designer, you should ask for a declaration of conformity at that point from the previous duty holder.
The regulations do not require Designers or Principal Designers to undertake site inspections of construction work; the Principal Contractor is wholly responsible for this for all building projects.
Under the HRB regime though, the Principal Designer (or Sole or Lead Designer) should ensure an appropriate frequency of inspections of HRB design work for safety occurrences throughout the construction phase.
Also, don’t forget your HRB duties when on-site to report safety occurrences if identified, whether relating to design work (building work not as designed) or more general site safety matters (unprotected voids).
It is therefore anticipated that Designers' appointments will be extended to support this obligation, or at the very least Designers' should be available to support any specific matters that may arise relative to their design work.
Additional Building Regulations information
As we’ve discussed in this article, the new duties for Designers and the Principal Designer are of great importance and architects are well-suited to carry them out.
These professional features from the RIBA Practice team should help build a little more confidence in your part of the new regulatory regime in England:
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.