Principal Designer (Building Safety Act 2022) – Six Months On

It is now six months since the role of the Principal Designer came into force under the Building Safety Act 2022 and associated secondary legislation[1]. As this role begins to become adopted and market standard in the industry, what have we learnt so far?

Industry Approach

Initial appetite to take on this Principal Designer role was low in the industry however, we are now seeing an increasing number of consultants begin to take on and perform it. Whilst some consultants remain uncomfortable with performing the role, there will be circumstances where refusal to accept the Principal Designer role may mean the consultant will lose out on the opportunity (i.e if the consultant is the Lead Designer, it may be a non-negotiable for the client).

Key Considerations

There still appears to be some confusion in parts of industry between the requirements for a Principal Designer under the Construction (Design and Management) Regulations, versus those introduced by the Building Safety Act 2022 (“the Act”) and associated legislation, which this RIBA article recently explored. Before accepting the Principal Designer role, the consultant must ensure that it can comply with the applicable competency requirements.

Where a consultant accepts the role of Principal Designer, it will be important to consider a number of points, including:

• Is it clear who the relevant dutyholders and accountable persons are under the Act?;
• Is the role clearly detailed in the scope?;
• Is the role properly reflected in the fee?;
• Does the consultant’s PI insurance provide cover for taking on the role?; and
• Are the planned programme and key milestones or gateways feasible?

It will be important to try and mitigate the risks involved in performing this new role in the appointment terms, for example by including express obligations on the client to put in place appropriate processes to enable the consultant to carry out the role, and additional provisions to address the particular enhanced risks around the regime for Higher-Risk Buildings. Ideally, separate appointment terms (including a separate scope and fee) would be used when performing the Principal Designer role, as this will make it easier if the role needs to be transferred at any time throughout the project.

Consultants should be aware of the role being ‘tacked-on’ to existing appointment terms without amendment to reflect this in the scope or an adjustment to the fee. On the other end of the spectrum, consultants should be alive to being asked to agree to an incredibly detailed scope which goes far beyond the statutory requirements of the role. In each case, taking an approach which is too simplistic, or overly detailed contains hidden risks for a consultant.

In addition, consultants should carefully review any associated competency declarations or associated statements.

Sub-consultants

Consultants may wish to engage sub-consultants to perform certain functions of the Principal Designer role. It will be important to ensure the terms of the sub-consultancy appointment are appropriately drafted so as to pass down the key risks involved with any delegated functions under the role, and appropriate steps will need to be taken to ensure that the sub-consultant has the competency and insurance to perform the role. Whilst the consultant may engage sub-consultants to assist with elements of the role, it should be noted that where the consultant is appointed as the Principal Designer, the statutory role and associated legal responsibilities will remain with the consultant, despite the engagement of sub-consultants.

Comment

Frustratingly for many consultants there is still a lack of published industry guidance to draw upon in order to seek clarity as to how to successfully perform the role. On 27 February 2024, the UK Government issued the ‘Design and building work: meeting building requirements’ Guidance Note from the Health & Safety Executive. This guidance outlines the main dutyholders’ roles/responsibilities and competency requirements for work on all buildings (including higher-risk buildings). We will continue to publish further updates on key developments related to the Act on our Building a Safer Future portal.

Similarly, there is no industry standard form of appointment to cover the new role. We recommend that consultants have a set of standard terms tailored for the Principal Designer role ready to use when you are required to act as Principal Designer. Please reach out to Andrew Croft (A.Croft@beale-law.com) or Felicity Hird (F.Hird@beale-law.com) if you require any assistance with the Principal Designer role.

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