Principal Designer and Principal Contractor – Secondary Legislation Published

Secondary legislation[1] is now in force which provides important clarification as to how the new roles of the Principal Designer and Principal Contractor will operate under the Building Safety Act. Regulation 6 inserts a new Part 2A into the Building Regulations which sets out the arrangements a client must make, including the appointment of a Principal Designer and a Principal Contractor, and provisions as to the duties and competence of persons working on a project. The legislation came into force on 1^st October 2023, so it is important to become familiar with the new roles as soon as possible.

Appointing the Principal Designer and Principal Contractor

In a similar vein to the CDM regulations, a Principal Designer and Principal Contractor must be appointed by the client in writing where there is (or where it is reasonably foreseeable that there will be) more than one contractor working on the project. This applies to all projects that are subject to building regulations, and it is not limited to higher-risk buildings under the Building Safety Act. This includes domestic projects undertaken for consumer clients (to the extent building regulations apply to them).

Regulation 11D(2) provides that a client is able to satisfy this obligation by certifying in writing, that the principal designer or principal contractor under the CDM regulations will take on a dual role and also act as the Principal Designer/Contractor for the purpose of the Building Safety Act. It is therefore vitally important that those in the industry currently performing these roles under the CDM regulations properly understand the nuances of the new roles under the Building Safety Act.

If the client fails to appoint a Principal Designer or Principal Contractor (or fails to appoint a replacement) the client is responsible for fulfilling these roles. If there is only one contractor working on the project, this contractor will be automatically treated as the Principal Contractor.  On such projects in a similar fashion, if there is only one designer that designer must fulfil the principal designer duties or if there is more than one designer the designers must agree between themselves which designer will take on the role of Principal Designer, and notify the client.  On domestic projects if the client fails to appoint a Principal Designer in writing ‘the designer with control’, will automatically take on the role and the position is similar with the Principal Contractor.

This could all create uncertainty, impact scope and cost and may be difficult to apply in practice. It is therefore very important that the identity of the Principal Designer and Principal Contractor is agreed in writing where possible.

Competency

Chapter 3 sets out the competency requirements in respect of the new roles. The competency requirements are drafted in broad terms, in that the Principal Designer and Principal Contractor must have the ‘skills, knowledge, experience and behaviours necessary’ to fulfil the role. There is a requirement to notify if the Principal Designer or Principal Contractor cease meeting the competency requirements during the project.

In addition, where an organisation is being considered to carry out ‘any building or design work’, the appointing person must consider whether a ‘serious sanction’ has occurred in relation to them within the last 5 years, and to consider any records of misconduct. There is therefore going to be a more stringent background check of all individuals engaged on a project, at all levels.

Duties of the Principal Designer and Principal Contractor

Chapter 4 sheds light on the specific duties that attach to the new roles, and more generally to contractors and consultants engaged on the project.

General duties on Designers and Contractors

When carrying out design work the designer must take all reasonable steps to ensure that the design is such that if the building work to which the design relates were built in accordance with that design, the building work would be in compliance with all relevant requirements (building regulations).

The same duty applies to contractors, however contractors are under a strict obligation (rather than the softer obligation to use reasonable endeavours) to ensure that the building work they carry out is compliant with all relevant requirements. The duty is therefore more onerous on contractors.

There is a risk that designers and contractors may take on responsibility for the work of others, as where a designer or contractor is carrying out only part of the works, they are under an obligation to consider ‘other work which directly relates to the building work’ and report any concerns as to compliance with the building regulations to the Principal Designer or Principal Contractor. Equally regulation 11K providers that each designer must consider the other design work and report any concerns to the Principal Designer. There is a risk that these obligations could open the door to a positive checking requirement on the work of others, and introduce a duty to warn.

Additional duties of the Principal Designer and Principal Contractor

It appears that the general duties above will apply to the Principal Designer and Principal Contractor, however additional duties attach to these key dutyholders.

Again, it appears contractors are subject to a more onerous strict obligation to ensure the works comply with building regulations.

The Principal Contractor must a) plan, manage and monitor the building work during the construction phase, and b) coordinate matters relating to the building work comprised in the project to ensure the building work is in compliance with all relevant requirements.

The Principal Designer must a) plan, manage and monitor the design work during the design phase, and b) coordinate matters relating to the design work comprised in the project so that all reasonable steps are taken to ensure that the design is such that if the building work to which the design relates were built in accordance with that design the building work would be in compliance with all relevant requirements.

Lastly, where the Principal Designer or Principal Contractor is replaced, the replacement new Principal Designer/Contractor must review the work of the previous Principal Designer/Contractor to make sure that the previous Principal Designer/Contractor has discharged its obligations in making sure the works comply with the building regulations. This will be an extra burden on an incoming Principal Designer/Contractor, and it seems that the replacement dutyholder will be under an obligation to check the work of the previous Principal Designer/Contractor and report any issues to the client.

Key Takeaways

The secondary legislation is a big change for the construction industry and is complex.  As the legislation is now in force, now is the time to get up to speed with the detail of the new roles, and consider whether you want to accept the role of the Principal Designer or Principal Contractor. If doing so, the contractual terms should also be considered carefully given the additional risks associated with the roles as mentioned above.  No industry standard terms have been updated or published as yet but we also recommend that consultants and contractors re-visit their standard terms and conditions to update the terms dependent as to whether or not they intend to carry out one of these new roles.

It is also important to review all existing appointments as principal designer or principal contractor under CDM and consider whether you will also take on the BSA role, with the impact on cost and scope discussed with the client.

Finally, given the increased focussed on competency all duty holders should review how they demonstrate their competency to fulfil these new roles and keep internal processes and guidance in place as to how they maintain competency and fulfil the roles.

We have not commented on The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 in this note.  We will publish a separate article commenting on this shortly.

[1] The Building Regulations etc. (Amendment) (England) Regulations 2023y

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