Part 3 of The Building Safety Act 2022 (“BSA”) will come into force by 28 October 2023, and will apply to all buildings. Two particular sections within Part 3 aim to increase and improve building safety. The first introduces accountability for ensuring that Building Regulations are adhered to so that buildings will be safe (by introducing a duty-holder regime not unlike that which applies in respect of health and safety during construction). The second aims for increased industry competence on the part of those duty-holders and reflects Parliament’s desire for a change in attitudes to responsibility for delivering buildings that will meet new regulatory requirements post-Grenfell.
Section 34 amends Schedule 1 to the Building Act 1984, by the addition of paragraph 5A, “Appointed persons”, and paragraph 5B, “General duties”. The new regulatory regime will regulate and hold to account those participating in the design and construction of new buildings, and the refurbishment and maintenance of existing buildings. The emphasis is to be on industry competence and a building’s future safety throughout its design and construction. This will apply to all buildings, not only higher-risk buildings (“HRBs”), and to all work on buildings save where an individual does minor work on their own property.
New paragraph 5A creates a power to require appointments to be made in relation to any work under building regulations, to make provisions about the nature of the appointment (including the appointer, the appointee and the term of the appointment), and determine situations where an appointment is deemed to have been made. It is anticipated that duty-holders will be identified in the same way as duty-holders under the Construction, Design and Management Regulations 2015 (“CDM Regulations”), as Client, Principal Designer, Designers and Principal Contractor and Contractors. In practice, these roles under the BSA and the CDM Regulations are likely to be performed by the same individuals. However, whereas the CDM regime is meant to deliver building project safety, the BSA regime is meant to deliver a building that is safe to occupy. Clients will be obliged to take steps to ensure that both health and safety and building regulations compliance competencies are met by the relevant principal appointees, or face some duplication in appointments.
New paragraph 5B creates a power to impose duties on relevant persons throughout the design and construction phase of a building project. The draft Building (Appointment of Persons, Industry Competence and Dutyholders) Regulations 2021 were quickly withdrawn and are presumably in course of being revised. However, they revealed that duties of cooperation, coordination, communication and competence will apply to the dutyholders. New ‘behaviours’ include refusing to carry out any building work that is not in compliance with relevant requirements, or to provide any design work that would not be in line with regulations. Placing duties on all those who plan manage and undertake building work will, it is hoped, embed standards of competence and behaviours within the project, reinforce individual and collective responsibility, and require the key dutyholders to work together and share information to ensure compliance with building regulations.
Section 35 amends Schedule 1 to the Building Act 1984, by the addition of paragraph 5C, ‘Competence requirements’. A “competence requirement” is a requirement relating to—
(a) the skills, knowledge, experience and behaviours of an individual;
(b) the capability of a person other than an individual to perform its functions under building regulations.
These regulations will impose a requirement on Principal Designers, Principal Contractors and anyone carrying out any design or building work to be competent for their roles. They also place a duty on those who appoint them to take reasonable steps to ensure that the people they appoint meet this requirement. This duty will extend to Accountable Persons under Part 4 of the BSA who appoint building managers to maintain the relevant common parts of HRBs given that Building Regulations extend to a ‘controlled services’ (e.g., installing a boiler) and ‘controlled fittings’ (e.g., a replacement window).
Where an organisation is to be the Principal Designer and/or Principal Contractor it will be required to designate an individual under their control who is competent to manage those functions. Further, those carrying out design or building work will be required to notify the relevant people when they are no longer competent for their roles, or work arises for which they do not have the necessary competence.
These regulations will not specify the detail of the competence needed for specific roles or sectors because the government considers that the construction industry is best placed to set the competence frameworks for each sector and role, based on a national framework. The government has worked with the British Standards Institution (BSI) to create a suite of national competence standards, known as Publicly Available Specifications (“PAS”), shown on its Competence Standards webpage:
The Act has a particular aim to improve the competence of those working on HRBs, and applications to the BSR for building regulation approval for the construction of an HRB must contain certain declarations by the Client as to how they have satisfied themselves of the competence of the Principal Designer and Principal Contractor they have appointed.
Part 3 of BSA 2022, including ss 33-34, will come into force on or before 28 October 2023. Regulations setting out the changes to Schedule 1 to the Building Act 1984 are likely to be published during April or May 2023 (according to the Department for Levelling Up, Housing and Communities’ Policy Lead on Industry Competence).
BSI themselves have pointed out that the Principal Designer duty-holder role should have whole-building capability and control of the design work, but in practice and with specialisation this has become fragmented, with liability confused in complex contractual arrangements. The acid test will be whether the industry can meet the Act’s expectations by October 2023. This will require professional bodies to develop training and accreditation programmes, and for professionals to undertake their own skills-gap analysis and undertake CPD as necessary, so that clients can be sure they are fit for selection. Without these, the new competence requirements will lead to delays in building regulation approvals and projects being held up.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.