Principal designers under the Building Regulations: what you need to know

The new duties and competence requirements for Principal Designers (and all dutyholders) brought in as a result of the Building Safety Act 2022 have been published in

The Building Regulations etc. (Amendment) (England) Regulations 2023

These new regulations are much as previewed back in 2022 when we were writing the competence framework for Principal Designers (PAS 8671), thank goodness!

They amend the Building Regulations (2010), apply in England and Wales, and come into effect on 1 October 2023.

If you're an architect and/or already supply CDM PD services, it's likely that you're already on the case. If not, you’d better limber up PDQ.

Here’s what you need to know.*

Procedural matters

To carry out the duties of a Building Regs PD (as distinct from a PD under the CDM Regs), you must adhere to a number of procedural requirements and be adequately competent.

The regulations allow you to carry out the role as an individual ... but it is much more likely that you will do so as a business of some kind. If so, you must:

• be a designer

NOTE that the term ‘designer’ in this context is almost – but not quite – meaningless. It encompasses anyone who in the course of a business carries out any building design work, or arranges for, or instructs, any person under their control to do so.

• have control over the design work
• have the ‘organisational capability’ to:

o??carry out the design work in accordance with all relevant requirements.

o??fulfil the duties of a designer and PD

NOTE that sufficient ‘organisational capability’ means that your individual staff members have relevant competence between them AND that your organisation operates a robust management system.

• designate an individual to manage the PD role’s functions and take all reasonable steps to satisfy yourself that the designated individual has the requisite competence (i.e., skills, knowledge, experience and behaviours) to ensure that your organisation carries out its PD duties.
• not accept appointments to the PD role if you do not have the requisite organisational capability
• not start work unless you are satisfied that the client is aware of their duties under the Building Regulations 2010 (as amended)
• notify the client if you cease to satisfy the PD requirements
• if your appointment ends, supply the client within 28 days with a document explaining the arrangements you put in place to fulfil the PD duties
• If you are replacing a PD whose appointment has terminated, you must review the arrangements that they put in place for fulfilling the PD role

Client due diligence

Clients have a duty to check that you have sufficient organisational capability before they can allow you to start work. They must take all reasonable steps to satisfy themselves that you meet the requirements for PDs and are able to fulfil the PD duties.

In relation to a higher-risk building (HRB), they must:

• ask you whether you have faced any ‘serious sanction’ within the last five years.
• consider any information available to them relating to any reports of misconduct on your part

NOTE that “serious sanction” is defined. It means:

• you’ve been issued with a compliance notice which referred to contravention or likely contravention of a requirement of Part A (structure) or Part B (fire safety) of Schedule 1;
• you’ve been issued with a stop notice;
• you’ve been convicted for any offence under: the Act; the Health and Safety at Work etc. Act 1974; the Building Safety Act 2022; the Regulatory Reform (Fire Safety) Order 2005;
• a report published by an inquiry under the Inquiries Act 2005 has found that your action or inaction resulted in one or more deaths or was likely to have been a contravention of any requirement of: the Act; Part A (structure) or Part B (fire safety) of Schedule 1; the Health and Safety at Work etc. Act 1974; the Building Safety Act 2022; the Regulatory Reform (Fire Safety) Order 2005.

PD duties and competence

Once appointed, your duties are to combine technical knowledge and management expertise with the specific objective of achieving compliance with ‘all relevant requirements’. Lots of the language and overall shape of the duties are familiar from the CDM Regulations. You must:

• plan, manage and monitor the design work during the design phase
• coordinate matters relating to the design work so that the eventual building complies with all relevant requirements
• cooperate with the client, designers and contractors (including the principal contractor, if any) to the extent necessary to ensure that the design complies with all relevant requirements
• take all reasonable steps to provide sufficient information, including about the eventual building’s maintenance, to make it possible for dutyholders to comply with all relevant requirements
• liaise with the principal contractor (PC) on the project
• share with the PC any information relevant to:

o??the planning, management and monitoring of the building work, and

o??the coordination of building work and design work for the purpose of

ensuring compliance with all relevant requirements.

• have regard to PC’s comments that relate to compliance
• if asked by the client, assist the client in providing information to designers and contractors
• take all reasonable steps to ensure that:

o??the design work carried out by any workers under your control is planned,

managed and monitored so that the design complies with all relevant

requirements

o??the design work that persons affecting the design work (such as

designers) carry out complies with all relevant requirements

o??persons affecting the design work (such as designers) cooperate with the

whole project team, comply with their duties under the Building

Regulations 2010, and consider the effect of their work on the whole

project

PDs on higher-risk buildings

On top of all this, working as a PD on HRBs entails additional de facto procedural duties and shared responsibilities that are set out in:

The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023

For example, PDs on HRBs have a specific duty to carry out inspections to monitor safety occurrences during the construction phase, and to supply to the client designs for the HRB building work before a building control approval application.

In conclusion

There are numerous tricky issues in all of this glorious and well-intentioned bureaucracy likely to bemuse or frustrate – especially given how little time there is to gear up your service. For example, how should you:

• demonstrate competence to the satisfaction of clients? (Architects have RIBA’s Principal Designer Certification Scheme and Register to look forward to, but I’m not aware of other schemes.)
• set up suitable systems (such as for carrying out inspections to monitor safety occurrences) with regards to HRBs?
• meet your design management duties, especially for people not under your control?
• ‘liaise with’ the PC and ‘take account of’ their comments?

The trickiest of all is whether your PI insurer will cover you for being responsible for compliance.

I’m sure new tools and consultancies will be on hand to help and are (even as I type!) rushing to finalize their commercial solutions. I hope they work but, untried and untested as they inevitably are, we should expect, at the very least, ‘teething trouble’ or, as some people have predicted, ‘a car crash’.

One way or another, though, the industry will grind on, hopefully to be safer, healthier and more accountable than it was before the tragedy that started it all: the Grenfell Tower fire.

?

* DISCLAIMER: While I’ve tried to reflect the legislation accurately, you must not rely on the information in this article. Always refer to the source legislation – The Building Regulations etc. (Amendment) (England) Regulations 2023 (SI 2023 No. 911) – and, if need be, consult a properly qualified legal expert.