On 1 October 2023 the changes to Part 2A of the Building Regulations came into force, yet every week I come across developers, contractors, consultants and sub-contractors who have no idea that the not-very-new duties even exist, much less what it means to them.
To be fair, those involved in HRBs are mostly fully on it, unless their projects are still under the transitional arrangements. But for the more general works, industrial, commercial and everything else, the various players are in a pitiful, and worrying, state of ignorance.
The amendments to the Regulations were aimed, post-Grenfell, at raising the competences of the industry and its ability to deliver safe buildings. The basis of the changes is to have named, single-point responsibility for design and/or construction of buildings so that they will meet the Regs, and they do this by the creation of duty-holders to make “suitable arrangements for planning, managing and monitoring a project (including allocation of sufficient time and other resources) so as to ensure compliance with all relevant requirements”. The duty-holders are the client, the Principal Designer and the Principal Contractor.
It is in those names that I think the problem lies. Those responsible decided that the Building Regs duty-holders should rejoice in the same name as those under the CDM Regulations.Very consistent. Very streamlined. Very stupid: because many, many people and companies - responsible, well-run companies - have simply not yet realised that there are two Principal Designers, and two Principal Contractors, or that their roles and responsibilities are completely different and unconnected.
All duty-holders are responsible for ensuring that the building will, when built, meet the Building Regs. The CDM duty-holders, in contrast, are responsible for health and safety during the construction process. It may well be that there are people and companies who are able to fulfil both roles, but it should not be an automatically combined appointment.
It all starts, as is usually the way, with the client. The client is required to appoint – in writing, and before construction starts (or before any application for approval for an HRB) – a Principal Designer and a Principal Contractor. If there is only one contractor, and only one designer, for the project then they are de-facto the Principals. In appointing them, the client is responsible for ensuring that they have the necessary competence and organisational capacity to undertake their roles. Developer clients are probably fine with this; they know the industry and often work with the same group of companies. But I am finding that commercial and industrial tenants would not only not know how to do this, but don’t even know that they’re supposed to. Who is telling them? Their lawyers who are organising the agreement for lease, or the licence for the works? They’re property lawyers. They know everything there is to know about easements and covenants, but they don’t know about construction law, and why should they? I wouldn’t know an easement from a wayleave these days. We specialise early, and then stay in our chosen field. Their architect? In these last two years I have met innumerable architects who don’t understand the new regime. The contractor? Why would they do that, even if they understand it themselves? Taking on liability for ensuring that the work of everybody on site meets the Regs? That’s not a liability to be accepted lightly.
Obviously, then, it must be the project manager, but as anyone who has ever watched Grand Designs knows, apparently project management is something that anybody can do. In companies developing or refurbishing for their own use someone from facilities is usually handed that poisoned chalice, and there’s no reason why they should know about this stuff. The vast majority of these companies haven’t grasped that choosing a contractor on lowest price alone is a bad idea, never mind assessing skills, experience, and behaviours. And even if someone tells them they have to assess the competencies of potential appointees, how on earth are they supposed to know how to?
The result of this is that, as far as compliance with the Regs goes, the project has started badly and isn’t likely to improve. The uninformed client is not aware of their ongoing duties anymore than they were of their need to assess and appoint the Principals. There won’t be a plan for compliance, and there certainly won’t be a post-completion statement from anybody confirming how compliance was achieved.
What the clients are aware of, however, is the CDM Regs: they’ve been around long enough, after all. But because the names for the Building Regs roles are the same, people don’t realise that they are different roles, with different responsibilities, carried out by different people. Add to these clients the staggering number of contractors and professionals who don’t know about their duties either, and it’s clear that when HSE start prosecuting for criminal offences of non-compliance with the Building Regs it’s all going to get a bit messy.
Let us at least hope that in another two years the position will have changed.