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As written, some of these amendments can be confusing and were unfortunately not widely consulted or advertised so the Government had to issue a circular letter giving further clarity to these changes.
As most of the work JETArch Design undertakes is on a domestic scale, we have written an overview here of how this will affect projects with domestic clients.
The Building Regulations etc. (Amendment) (England) 2023 identifies duty holders and their involvement in the procurement, design and undertaking of building work and imposes duties on them. They apply to all projects that involve building regulations from 1st October 2023 onwards. The duty holders to which these regulations will apply will be clients, principal designers, designers, principal contractors and contractors. As has always been the case, the duty to ensure the work complies with all relevant building regulations is on those precuring and undertaking the design and building work. Duty holders will need to plan, manage and monitor their work, cooperate and communicate with each other and coordinate their work.
Those undertaking design work and building work will need to have the right competence (skills, knowledge, experience and behaviours) for the work to which they are engaged. The person making the appointment (typically the client) for the work has a duty to appoint a competent person.
The responsibilities of duty holders can be summarised at thus:
Principal Designer of Designer: will need to be required to take all reasonable steps to ensure that the design is such that, if the building work to which the design relates has been built in accordance with that design then the building work would comply with all relevant requirements. They will need to submit a notice of compliance to building control prior to the final inspection.
Client (domestic): must make suitable arrangements for planning, managing and monitoring a project so as to ensure compliance with all relevant requirements. They will need to submit a notice of compliance to building control prior to the final inspection stating that they have appointed the right people for the right positions (as already exists in the requirements of CDM Regulations 2015. Domestic clients must ensure that the further duties as set out in legislation are undertaken by the designer and contractor.
Contractors: will need to be required to take all reasonable steps to ensure that the work carried out by them is planned, managed and monitored. They must cooperate with the client, designers and other contractors to the extent necessary to ensure the work is in compliance with all relevant requirements. They will need to submit a notice of compliance to building control prior to the final inspection.
The Building Safety Regulator now has extensive enforcement powers for non-compliance including the levying of fines and requiring the alteration or removal of non-compliant work, with all work on site to be stopped until the non-compliance is resolved. Any failure to comply with such notices will be a criminal offence.
Directors, partners, managers or any other “similar officer” will no longer be able to hide behind the shield of a cooperate structure to avoid penalties of non-compliance. Contractors will also no longer be able to use the excuse that they were just following the drawings as they now hold joint responsibility over the compliance of what is built.
The legal definition of commencement has now changed meaning clients cannot simply start to clear the site or “stick a spade in the ground” to qualify as commencement.
What this now means for domestic clients is that they cannot just appoint a designer now to simply produce drawings for them and that designer cannot just provide structural calculations and expect the works to be sorted out under a building notice. This is a point we are struggling to get across to clients who are looking to appoint the cheapest design as there is a high chance that those designers, and by extension the clients, are then no complying with the legislation and are potentially committing a criminal offence. However, with the continuation of designers to either ignore the legislation or fail to keep up to date with it, the responsibility falls to those clients making the appointments to know what their duty is, which is an almost impossible task for domestic projects.
