Building Regulations dutyholder regime – where things currently stand

Changes to the Building Regulations 2010 through The Building Regulations (Amendment) (England) Regulations 2023 (“Building Regulations”) were introduced on 1 October 2023.

Significantly, a new dutyholder regime (“the regime”) was introduced, placing additional legal responsibilities on those who commission building work and participate in the design and construction process. Additional responsibilities are also placed on those who are responsible for structural and fire safety management in occupied higher-risk buildings. It is very important that those approaching building work understand their obligations under the regime.

General dutyholder obligations under the regime

All dutyholders, including those who commission work, known as “clients” in the Building Safety Act 2022, are under general obligations during the design and construction phase of a project. They must:

• Plan, manage and monitor their work to ensure the building work complies with building regulations
• Cooperate with other dutyholders. This duty includes sharing information, communicating effectively and providing support to facilitate compliance with the new regulatory requirements
• Ensure that themselves and any person they appoint are competent. Where organisations are involved in the project, the test of competence includes having appropriate organisational capability.

Client obligations under the regime

The “client” is defined in the Building Regulations as “any person for whom a project is carried out”, with a further definition of a “domestic client” which is stated to be “a client for whom a project is being carried out which is not in the course or furtherance of a business of that client.” This is essentially any person that has control over the methods of procurement, management and funding before or during a project.

As with the Construction (Design and Management) Regulations 2015, there may be multiple parties which meet the definition of a “client”. In these circumstances, it must be agreed who is to act as a ‘lead client’. The lead client will hold the primary responsibility for compliance with the regime.

What are the obligations of a lead client under the Building Regulations?

The obligations of a ‘lead client’ include:

• Making suitable arrangements for planning, managing and monitoring a project, including the allocation of sufficient time and resources. These arrangements must be maintained throughout the project to deliver compliance with the Building Regulations
• Being confident that whomever it appoints has the correct competencies for the work while ensuring appointees have systems in place to ensure compliance with the Building Regulations
• Should a project require more than one contractor working on differing aspects of the project, the lead client should appoint a principal designer for the design works and a principal contractor to be in control of the building work
• Providing health, safety and environmental information on the site to every designer and contractor on the project
• Obtaining local authority or approved inspector consent of plans before construction begins
• Providing a record of the completed building, such as “as-built” drawings at the end of construction.

Regardless of whether a client is a ‘lead client’ or not, they must:

• Provide building information to every designer and contractor on the project
• Comply with a duty to cooperate with others in relation to the project to facilitate compliance of others with their duties under the Building Regulations

There are additional considerations should the project concern a Higher Risk Building.

Clients should also be aware that should they omit to appoint any, or a particular, duty holder in accordance with their obligations under the Building Regulations, the client themselves becomes liable for the duties that would have otherwise been performed by the unappointed party.

Delegation of client duties

Clients may not always be experienced in construction procurement, especially “domestic clients”. If this is the case, they may delegate their duties to the principal designer, principal contractor or another person.

The client must always be wary of potential sanctions when appointing a third party to carry out its functions under the Building Regulations. While delegation is permissible, the client must be satisfied that those that they appoint are competent to carry out their roles.

It is important to remember that even if someone else carries out the functions of the client, the legal responsibilities remain with the client, even if potential default arises through the conduct of the appointee.

Potential liability

Failure to meet the client responsibilities under the Building Regulations may result in penalties, criminal liability, project delay and remedial works. There is also the potential for impact to building valuations and insurances.

Guidance and thorough understanding of the Building Regulations is of paramount importance for the client when commissioning a construction project. They should liaise carefully with their project team to ensure these issues are considered as soon as possible in the context of a project to ensure matters are satisfactorily covered off and appropriate parties appointed to fulfil specific functions.

Practical steps

Clients can take Practical steps to aid in fulfilling obligations under the Building Regulations:

• Consider at an early stage who the dutyholders for the project are likely to be, and what responsibilities those parties will have under the Building Regulations. Dutyholders, at the end of a project, are required to sign off a declaration of compliance which this step will help facilitate
• Carefully consider the competence of the parties you choose to appoint, taking special care with those who may be performing the client’s own duties as the risk of client default is potentially high. The relevant Publicly Available Specification standard – PAS 8671 – sets out the skills required for Building Regulations Principal Designers and PAS 8672 for Building Regulations Principal Contractors
• Maintain standards throughout a project, ensuring close coordination with other dutyholders to allow site information sharing and facilitation of compliant actions.