Duty holders according to the Building Regulations Amendment 2023

1 Introducing the Building Safety Act 2022
2 Changes to building regulations
3 What are dutyholders?
- 3.1 Clients
- 3.2 Other dutyholders
4 CDM dutyholder roles
5 Related articles on Designing Buildings

[edit] Introducing the Building Safety Act 2022

The Building Safety Act 2022 introduces the most radical change to the English regulatory landscape for the built environment in a generation. Needless to say, many of the changes have far-reaching consequences for construction clients. Some of the biggest changes have been to the Building Regulations 2010. Not only do they introduce new procedures, but they also impose new duties on construction clients, with, under revisions to the Building Act 1984, harsher penalties for failures to comply.

With the period of grace for transitional arrangements expiring on 6 April 2024, you cannot afford to ignore them. This article is based on the CIOB 2-part blog and gives a taste of what to expect for buildings other than higher-risk buildings.

[edit] Changes to building regulations

If you’re a construction client carrying on work in England – for example, an organisation building your own offices, a developer, or a homeowner doing up your home – you will be impacted by the recent changes to the regulatory system for building control.

These changes all stem from the 2017 Grenfell Tower fire, which precipitated a root and branch rethink of the way we protect the safety of the people who use buildings.

Led by Dame Judith Hackitt, the rethink found (among many other things) that the existing Building Regulations 2010 (BRegs), one of the main objectives of which is to protect people in buildings, had significant shortcomings. For example, she found that:

The people carrying out design and building work, and those checking it, did not always appear to be adequately competent to ensure that projects they work on comply with the BRegs.
The systems used to assure compliance in design and building work appeared to fall short of satisfactory standards.
The penalties for breaches were not enough of a deterrent to discourage non-compliance.

The Building Safety Act 2022 (BSA) responded to these shortcomings, opening the way for a piece of secondary legislation– The Building Regulations etc. (Amendment) (England) Regulations 2023 – to fix them. It does this by amending the BRegs to:

Introduce new dutyholder roles with accompanying duties.
Insist that these dutyholders have adequate competence.
Impose new procedures to mitigate risks to the safety of building users.

Closely related to these measures, the BSA also amended the Building Act 1984 to make dutyholders’ non-compliance more punitive in various ways.

[edit] What are dutyholders?

As the name suggests, dutyholders are persons (i.e., individuals or corporate bodies) with legal duties.

The new changes to the BRegs identify five kinds:

It is possible for one person to take on more than one dutyholder role. For example, principal dutyholders do just that: they have designer or contractor duties, with additional principal dutyholder obligations on top.

[edit] Clients

Under the BRegs, a ‘client’ is ‘any person for whom a project is carried out.’

There is a special sub-category of client called a ‘domestic client’, which means ‘a client for whom a project is carried out which is not in the course or furtherance of a business of that client.’

This includes Mr and Mrs Smith extending their home. They are treated differently because, rather like consumers, they are generally inexpert buyers of design and building services and are thus deserving of protection. Although they still have duties, these duties are less onerous than those of non-domestic clients.

A client cannot escape the client duties. Indeed, if a client fails to appoint others to dutyholder roles, or if other dutyholders’ contracts come to an end before the project has concluded, a client may find itself responsible for carrying out other dutieson top of its own.

[edit] Other dutyholders

The other dutyholders all have a general duty to cooperate and comply with relevant requirements, which of course helps clients in meeting their duties.

[edit] Designer

A ‘designer’ is ‘any person who in the course of a business either carries out any design work, or arranges for, or instructs, any person under their control to do so.’

This definition is rather broad and can easily extend to persons who might ordinarily think of themselves primarily as contractors or clients (or domestic clients).

[edit] Contractor

A ‘contractor’ is ‘any person who, in the course of a business, carries out, manages or controls any building work.’

This group can include a client but not a domestic client.

In a bid to assign accountability for compliance, the BRegs now require you to identify one designer and one contractor to be responsible for signing off on, respectively, all the design work and all the building work. The collective name for these persons is ‘principal dutyholders’.

Principal dutyholders are the client’s best friends, the persons they rely on to help them to comply, secure a completion certificate from the relevant authority, and thus manage their ongoing liabilities for the safety of users in their buildings.

[edit] Principal designer

A ‘principal designer’ takes on additional duties on top of their duties as designers. To do so, they must have ‘control over the design work.’

[edit] Principal contractor

A ‘principal contractor’ takes on additional duties on top of their duties as contractors. They must have ‘control over the building work.’

Although there can only ever be one of each principal dutyholder in post at one time, it is of course possible to replace them mid-project.

[edit] CDM dutyholder roles

You might be thinking to yourself, “Hang on – these dutyholder roles aren’t new: they were already in existence under the Construction (Design and Management) Regulations 2015 (CDM).”

You’d be half right. There was (and still is) a set of dutyholder roles under the CDM but, even though they have DNA in common and have the same names, they are different to the new dutyholder roles under the BRegs.

It helps to think of the two sets of roles as ‘BRegs dutyholders’ and ‘CDM dutyholders,’ and remember that you may well need both on a project.

To avoid confusion, therefore, clients should clearly identify who is doing what in appointments and articulate expectations regarding these regulated roles accordingly. (Although it is not a given, the industry anticipates that CDM dutyholders will be appointed to the roles of the same name under the BRegs – if they are competent to do so.)

If this is still unclear, all dutyholders have a mutual obligation to help each other to meet their duties, which should ensure that important responsibilities and obligations are less likely to fall through the gaps. After all, the primary objective is compliance, not catching

This article appears on the CIOB news and blog site as "What the Building Safety Act 2022 means for construction clients - Part 1" dated January 23, 2023.

--CIOB