Updates to the ABCA’s Standard Contracts

We are delighted to have recently been involved, alongside the market’s insurers, in drafting the updated Association of Building Control Approvers (“ABCA”) standard contracts for the appointment of a Building Control Approver.

The Building Control Approver role, replacing that of the Approved Inspector, was introduced following the numerous changes under the Building Safety Act. From 6 April 2024, the new regime, with its applicable measures and controls, largely came into effect.

The new ABCA contracts are the standard form contracts for use by Building Control Approvers carrying out the new role.  They are based on and intended to be used in a similar way to the CIC/ACAI Contract for Appointment of an Approved Inspector (Third Edition 2020).

As discussed further in previous articles here and here, the key changes to the regime include:

• Approved Inspectors have been replaced by registered Building Control Approvers, who may be organisations or individuals.
• Building Control Approvers are now monitored/regulated by the Building Safety Regulator (“BSR”).
• There are now minimum performance standards that Building Control Approvers must meet, and different classes based on competence and experience. To progress through the classes, and to maintain class position, there is mandatory CPD.
• The BSR now has more powers to investigate and sanction Building Control Approvers.
• There are more stringent measures in relation to “higher-risk building work” as per the Building Safety Act.

The new ABCA standard contracts seek to address the core components of the new regime and some of the risks associated with it. They include both a standard form and a short form (intended for use if the project value is less than £500,000 and for a domestic client).

Key changes to the standard contracts include the following:

• They reflect the new terminology and statutory role.
• There is now an express obligation on the client to give the Building Control Approver written notice when the project reaches each stage which requires an inspection.
• There is an express obligation on the client to notify the Building Control Approver if it is not, or ceases to be, the person carrying out the works (for the purpose of Building Regulations approval).
• The client is now entirely responsible for the design, construction and management of the project.
• The risks for a Building Control Approver under the new duty holder regime are addressed. For example, the Building Control Approver is not responsible for failure of the client or other members of the project team to comply with their obligations under the dutyholder regime.
• Where the Building Control Approver takes over unfinished work that is not subject to a final certificate (which is very common), it is entitled to rely on the documents prepared by the previous Building Control Approver.
• The Building Control Approver is now entitled to terminate the contract where the project becomes classified as “higher-risk building work”.

While the standard form and short form of contract are similar in their content, the short form takes a ‘lighter touch’ approach.   For example:

• There is no option for the client to appoint an agent to act on its behalf, as there is under the standard form contract.
• The provisions in relation to additional work performed by the Building Control Approver are less prescriptive.

This reflects the lower value and reduced complexity expected on such projects. The approach also makes the short form contract simpler and easier to complete.

There had previously been some concerns around the new building safety regime and the timescale for registration. The Health & Safety Executive (“HSE”) published some preliminary guidance back in October 2023 to address this.  In addition, despite the initial registration deadline of 6 April 2024 (which remains effective), the HSE extended the deadline for such building control professionals to complete the necessary accreditation required to demonstrate the competency requirements under the new building safety regime until 6 July 2024 in England.

The impact of the new regime and approach to the new Building Control Approver role is still being digested by the industry. We are aware of many projects being delayed as a result of a failure to complete under the transitional arrangements, and therefore needing to effectively recommence the building control process with a Registered Building Control Approver. ABCA’s website contains links to additional resources including specific BSA/HSE documents and other Government circulars, and guidance setting out additional information for dutyholders.

These new forms provide a basis for Building Control Approvers to be appointed in a way which reflects the new regime and the basis of their PI insurance cover.  We expect that they will be used by Building Control Approvers going forward and adopted by the industry in the same way to the CIC/ACAI form.

We are also aware that some Building Control Approvers/former Approved Inspectors are being appointed to provide only “non-statutory” services, e.g., to advise in relation to the application of the Building Regulations. In such circumstances, the ABCA Standard Contracts will require amendment to reflect the specific role being provided. It is also important that those providing such services confirm with their insurance advisors that professional indemnity insurance extends beyond the statutory role.

Please do get in touch if you would like any advice in relation to the use of or adaptation of the ABCA standard contracts, or in relation to the Building Control Approver regime more generally. We also have guidance on changes and developments introduced via the Building Safety Act on our website and Building A Safer Future Hub.