How developers can prepare now for the Building Safety Act: Part 2 of 3

Welcome to the second part in our series of articles on the Building Safety Act 2022.

In Part 1 of our series of articles on the Building Safety Act 2022 we discussed the greater exposure to claims due to extensions in limitation periods and the measures aimed at addressing failures to remedy historical safety defects. In Part 2, we discuss the dutyholder regime and look at the steps developers can take now to prepare.

Dutyholder regime: increased focus on competence

Applies to all work to which the Building Regulations 2010 apply

What’s changing?

The provisions of the Act focus on improving competency in the industry and place duties upon those who procure, plan, manage and undertake building work.  Secondary legislation will introduce a new dutyholder regime that the government intends to implement between April 2023 and October 2023. The government has previously published draft regulations to detail how the dutyholder regime may operate in practice. However, these have been removed from the website and so a revised set of regulations may be imminent.

As originally published, The Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations imposed additional building safety duties on dutyholders under The Construction (Design and Management) Regulations 2015. The client under the draft Regulations is defined as ‘any person for whom a project was carried out’. This role will often be fulfilled by the developer. A client must make suitable arrangements for the planning, managing and monitoring of a project to ensure the work is in compliance with the Building Regulations. Where there is more than one contractor the draft regulations stated that the client must appoint a principal contractor and a principal designer. Any person carrying out building or design work must have the skills, knowledge, experience and behaviours or organisational capabilities to carry out the work and the duties specified by the draft Regulations.

Action points

• Maintain a watching brief when the draft Regulations are reissued and monitor closely any changes before these are finalised. The government has said that these Regulations will be subject to consultation. Additional guidance is also expected including national competence standards for higher risk buildings produced by the British Standards Institution (BSI). The BSI is also developing competency standards for the role of principal contractor and principal designer. It will be appreciated that the provisions of the draft regulations are in large part in line with and speaking the same language as the existing CDM Regulations, but will apply a further layer of responsibility specific to compliance with the Building Regulations and building safety.
• Review existing internal procedures that assess and monitor competency of the supply chain and ensure that those working on projects can demonstrate the requisite competencies. Also, start to consult and work with the supply chain to understand what steps they are also taking since they will equally have responsibilities flowing down from the Act and will be considering how to satisfy their obligations and the requirements of their clients. Consider what records will be required to demonstrate these competencies. Appointments and building contracts should make specific reference to the obligation of dutyholders to comply with the competency requirements specified under the secondary legislation when this is finalised.
• The client will need to ensure that those they appoint have the systems in place to monitor and evidence that work has been completed in accordance with the building regulations and include contractual provisions to reflect these obligations. Breach of the building regulations is a criminal offence and s.39 and s.40 of the Act makes changes to the Building Act 1984 to provide that contraventions may result in imprisonment. Where an offence is committed by a body corporate with the consent or connivance or neglect on the part of a director, manager, secretary or similar officer then that person and the company may be prosecuted. These provisions are expected to come into effect within the next 18 months. The Act also amends the Building Act 1984 to extend the period for issuing notices to remove or alter work in contravention of the Building Regulations from 12 months to 10 years.

Final thoughts

Whilst the detail of the new dutyholder regime is awaited, the industry is being urged to get ready now. Dame Judith Hackitt stated in a recent HSE Bulletin “The clock is now ticking and the pace is accelerating. Change is going to happen this time – there’s no denying it anymore!”.

Click here to read part 3 in the series.