Do your duty: don’t forget about the Building Regulations dutyholder regime

The dutyholder regime was introduced into the Building Regulations 2010 (Building Regulations) by the Building Regulations etc. (Amendment) (England) Regulations 2023 (BRAE Regulations) and has been in force since 1 October 2023.

Lucilla Waugh, partner in our construction team, discusses the key considerations of the duties and offers top tips on how to comply.

Why should you comply with the duties?

Although the dutyholder regime has been in force since last year, it is worth shining a light on the importance, for those involved in construction projects, of complying with their duties under the regime. 

These are three compelling reasons to comply!

1. To ensure the health and safety of people;
2. Without the required competencies, designers and contractors are limiting/excluding their business opportunities and their ability to obtain required insurances on reasonable terms; and
3. A person who contravenes a provision of the Building Regulations commits an offence and if convicted, could be liable to imprisonment and/or a fine.

What are the duties?

There are general and specific duties that apply to dutyholders. 

Furthermore, there are specific duties relating to higher-risk buildings (HRBs), in addition to those that exist under other regulations, such as the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023. 

Broadly speaking, the duties seek to achieve that:

• A designer, who has control over the design work, is appointed to act as Principal Designer (PD);
• A contractor, who has control over all the building work, is appointed to act as Principal Contractor (PC);
• The relevant duty holders have the competency to carry out building and design work and to perform the roles of PD and PC and, where appointing others and before appointing them, they check the others have the competency and no sanctions have occurred;
• The planning, management and monitoring of building and design work is carried out to comply with the Building Regulations;
• There is cooperation and information sharing between all those involved in the project; and
• Where dutyholders change, clients and the relevant authorities are notified within specified periods. 

To whom do the duties apply?

The dutyholders introduced by the BRAE Regulations are clients, PDs, PCs and the contractors and designers carrying out building and design work.

Client

A client is any person for whom a project (involving building work and related planning, design, management and other work) is carried out.

Where there is more than one client, the clients may agree in writing which of them is to be treated as the client for the purposes of the BRAE Regulations.

A client includes a domestic client (a client where the project is not in the course or furtherance of a business) although some regulations do not apply or are different for domestic clients.

PD and PC

The PD and the PC roles are different  from the principal designer and principal contractor roles under the Construction (Design and Management) Regulations 2015, although there is a large degree of overlap.

The PD and PC can provide the CDM principal designer and principal contractor roles as well, as long as the client certifies it is doing so and the PD and PC have the required competency to perform the respective roles under both sets of regulations. 

Contractor

A contractor can include a client (but not a domestic client, as it is a person who, in the course of a business, carries out or manages or controls any building work).

Designer

A designer can include any other dutyholder where, in the course of a business, it carries out design work or arranges for or instructs any other person under its control to do so.

When do the duties apply?

There are limited exceptions where the new duties do not apply. In summary, these are where the works are either so minor in nature that no building notice or deposit of full plans are required, or they are “exempt” work. 

Exempt work includes work to or for the erection/extension of any building which, in summary, is any of the following: 

• Controlled under other legislation
• Not frequented by people
• A greenhouse
• An agricultural building
• A temporary building (not intended to remain for more than 28 days)
• An ancillary building
• A small, detached building or extensions with a floor area of less than 30sqm.

Our top tips on how to comply

Our top tips are:

• Assess your ability and competency to fulfil the prescribed duties;
• Address any gaps in competency with training. Consider guidance issued by the Government and other third parties such as the British Standards Institute (see their competence requirements for individual principal designers (PAS 8671:2022) and individual principal contractors (PAS 8672:2022), the Chartered Institute of Building and Royal Institute of British Architects; 
• Where relevant, produce a competency statement;
• In relation to work to an HRB (and it would be good practice to do this for other buildings too), prepare a written record of the steps you have taken to be satisfied that others you appoint meet the competence requirements;
• When making appointments, consider what your appointments should include in relation to the duties. Whilst a general requirement to comply with law would include the new dutyholder regime, it would be sensible to expressly refer to the new duties, as an essential reminder of the active obligations that the dutyholders must perform and to include warranties as to competence;
• Where appointing a designer to also act as PD, consider if there should be separate appointments for each of the design and PD role;
• Where appointing a contractor to also act as PC, consider if there should be separate appointments for each of the works and PC role;
• Where clients decide to appoint the same person or organisation to carry out duties under both the CDM Regulations and the Building Regulations, consider whether there should be one combined professional appointment covering both sets of duties or separate appointments for each discipline;
• Issues to consider in relation to the three points above include the impact of limitations on liability under combined appointments and having the flexibility to terminate, novate and assign separate appointments; and 
• Ensure you comply with your duties throughout the project.

For more information on the dutyholder regime, or if you have any questions on construction law in general, please contact Lucilla using [email protected] or 0191 211 7984.