Dutyholder Regime during design and construction

The dutyholder regime introduced as part of a number of measures in response to the Grenfell fire is aimed at improving accountability across the built-environment. Duty holders take on certain duties relating to compliance with Building Regulations and hold new competence requirements for design and building work. 

Much of the focus of the Building Safety Act 2022 is on higher-risk buildings (HRBs). However, the dutyholder regime applies to all buildings requiring building control approval, with additional duties for HRBs as set out in the Building (Higher-Risk Buildings Procedures) Regulations 2023. HRBs during design and construction are, subject to various exclusions, broadly those buildings in England of at least 18 metres and/or seven storeys which either contain at least two residential units, or are hospitals or care homes. 

The Building Safety Act also introduces a separate dutyholder regime in relation to the management of occupied HRBs, which is not addressed here.

Set out below is a reminder of the dutyholder provisions during design and construction. The regime was introduced by the Building Regulations etc. (Amendment) (England) Regulations 2023, which amend the Building Regulations 2010, and subject to transitional provisions the new regime came into force on 1 October 2023.

Further information on the dutyholder regime can be found in the government guidance.

When do the dutyholder provisions apply?

The dutyholder regime for design and construction applies to all building work that requires Building Regulation approval and so broadly applies to the construction, extension, material alteration and refurbishment of all buildings (except where the work is not notifiable as building work or is exempt.

There are additional duties where the works involve:

• the construction of a new HRB

• work on an existing HRB, including work that causes the building to stop being an HRB

• work on an existing building that will make it an HRB.

Who are the new dutyholders?

The duty holders are the:

• Client

• Principal Designer

• Principal Contractor

• Designers

• Contractors.

Although the dutyholders are familiar as the roles align with the dutyholders under the CDM Regulations 2015, the new regime focuses on compliance with the Building Regulations. This reflects the new culture of accountability for delivering compliant buildings. 

The dutyholders therefore:

• Adopt new roles and duties around the planning, managing and monitoring of work undertaken to ensure that works comply with the relevant Building Regulations.

• Hold new and strengthened competency requirements, including obligations to take reasonable steps to satisfy themselves that, before appointing other parties to undertake work, they ensure that such parties have the necessary competence to perform such work.

• Will need to issue compliance statements at completion of construction confirming, in the case of the Client, that the work complies with all applicable requirements of the Building Regulations; and in the case of the Principal Designer and Principal Contractor that they have fulfilled their duties under the Building Regulations.

What are the competency requirements? 

A key aspect of the dutyholder regime is that those involved in carrying out design or building work need to be competent and to demonstrate their competence to carry out their work in compliance with the Building Regulations.

The competency requirements apply to both individuals and organisations: 

• for individuals - any person carrying out building or design work must have the necessary skills, knowledge, experience and behaviours. Behaviours includes refusing work beyond the competence of the individual.

• for organisations - they must have “organisational capability”, including appropriate management policies, procedures, systems and resources to ensure individuals under their control comply with their obligations.

Where the Principal Designer or Principal Contractor is not an individual, it should designate an individual having the necessary skills, knowledge, experience and behaviours to manage its functions.

Competence can be demonstrated, for example, by formal training, appropriate qualifications or references, or by providing a portfolio of work which sets out relevant experience and knowledge. In addition, standards PAS 8671 and PAS 8672 set out a framework of competencies for the Principal Designer and Principal Contractor which can be used as a benchmark for assessment of competence of those dutyholders, but evidence of competence will still be required.

General duties for all dutyholders

Each dutyholder has a general duty:

• To ensure that any building work carried out by them (and others under their control) is planned, managed and monitored so as to comply with relevant Building Regulations.
• To take reasonable steps to ensure that any design work carried out by them (and others under their control) is planned, managed and monitored so that the design complies with relevant Building Regulations.

• To co-operate with other dutyholders to ensure compliance with Building Regulations. Separately, each dutyholder has specific duties.

Client duties: all buildings

The Client is any person for whom a project is carried out.

A Client's duties include: 

• Making suitable arrangements for planning, managing and monitoring a project to ensure compliance with all relevant requirements. Arrangements are suitable if they: ensure that the design work is carried out so that if the building is built to that design it complies with relevant requirements; ensure that building work is carried out in accordance with relevant requirements; enable designers and contractors to cooperate with each other so they can comply with their duties, establish and provide for periodic review of building and design work to meet relevant requirements.

• Providing building information as soon as it is practicable to all designers and contractors.

• Co-operating with those working on or in relation to the project.

• Appointing competent contractors and designers having taken reasonable steps to satisfy themselves of their relevant competency.

• Where there is more than one contractor, appointing a Principal Designer with control over the design work and a Principal Contractor with control over the building work. These appointments should be in place before construction phase starts.

Client duties: HRBs

Where work involves an HRB the Client has additional duties including:

• Managing the building control applications to the Building Safety Regulator (BSR) (with the help of others). This will include provision of detailed information in relation to the works including the plans, a construction control plan and the appointments of the Principal Designer and Principal Contractor which should be in place prior to the application to the BSR for building control approval.

• Providing a competence declaration to confirm Client satisfaction of the competence of the Principal Designer and Principal Contractor, and keeping a written record of the steps taken to establish this. Where the Principal Designer or Principal Contactor (or anyone appointed by them) has been issued with a serious sanction in the last five years, providing an explanation as why the individual or organisation remains competent to carry out their duties.

• Providing a compliance declaration when submitting an application for approval of completion of an HRB, signed by the Client which confirms that to the best of the Client's knowledge the works meet the relevant Building Regulations; and similarly securing compliance declarations from the Principal Designer and the Principal Contractor confirming they have fulfilled their duties.

• Providing a statement when submitting an application for approval of completion of an HRB confirming that the relevant fire safety and golden thread of information about the building has been handed over to the relevant person responsible for the management of the occupied HRB, signed by the Client and that person, who has to confirm that the information received allows them to understand, operate and maintain the HRB.

• Ensuring that the Principal Designer and Principal Contractor have a mandatory occurrence reporting system in place.

• Making suitable arrangements for the creation and maintenance of the golden thread facility.

Further detail around the documentation that needs to be provided by the Client can be found here.

Principal Designer duties

The Principal Designer is the designer appointed to perform the principal designer duties.

A Principal Designer's duties include:

• planning, managing and monitoring the design work during the design phase so that all reasonable steps are taken to ensure the design work is in compliance with all relevant requirements 

• co-ordinating matters relating to the design work 

• taking all reasonable steps to ensure the designers co-operate with the Client, Principal Designer, Principal Contractor and each other

• taking all reasonable steps to ensure that their design is planned, managed and monitored to ensure that – if built – the building work will comply with all relevant requirements 

• liaising and sharing information with the Principal Contractor

• having the relevant competency to fulfil the duties of a Principal Designer; not accepting work where it is not competent; and appointing only competent persons 

• providing the necessary compliance declarations to building control

• where the work involves an HRB, establishing a mandatory occurrence reporting system, updating the golden thread information.

Principal Contractor duties 

The Principal Contractor is the contractor appointed to perform the principal contractor duties.

A Principal Contractor's duties include:

• planning, managing and monitoring the building work during the construction phase to ensure the works comply with all relevant requirements

• co-ordinating matters relating to the building work

• taking all reasonable steps to ensure the contractors co-operate with the Client, Principal Designer, Principal Contractor, and each other

• taking all reasonable steps to ensure the building work of all contractors is co-ordinated so that the works comply with all relevant requirements 

• liaising and sharing information with the Principal Designer

• having the relevant competency to fulfil the duties of a Principal Contractor; not accepting work where it is not competent; and appointing only competent people

• providing the necessary compliance declarations to building control

• where the work involves an HRB, establishing a mandatory occurrence reporting system and updating the golden thread information.

Designers

Any person “who in the course of a business carries out any design work, or arranges for, or instructs, any person under their control to do so”.

A designer's duties include:

• taking all reasonable steps to ensure that their design is planned, managed and monitored to ensure that – if built – the building work will comply with all relevant requirements

• co-operating with other dutyholders

• in providing a design, taking all reasonable steps to provide sufficient information about the design, construction and maintenance of the building to other dutyholders

• if carrying out only part of the design, considering other design work and reporting concerns as to compliance.

Contractors

Any person “who, in the course of a business, carries out, manages or controls any building work”. 

A contractor's duties include: 

• ensuring that their work is planned, managed and monitored so as to comply with all relevant requirements

• co-operating with other dutyholders

• taking all reasonable steps to provide sufficient information about the work to other dutyholders 

• if carrying out only part of the building work, considering other work and reporting any concerns about compliance.

Competency declarations

One of the significant features of the new dutyholder role is the need to deliver competency declarations to the building control authorities at completion of construction. This obligation applies not only to HRB work but also to non-HRB work. These compliance declarations confirm:

• that the work to the best of the Client's knowledge complies with all applicable requirements of the Building Regulations 

• that the Principal Designer and Principal Contractor have complied with their respective duties as duty holders under the Building Regulations. 

For an HRB the provision of the compliance declarations is required as part of the application for building control approval at completion to the Building Safety Regulator, known as Gateway 3; whereas for non-HRB work the compliance statements can be provided up to five days after the work is completed. 

The other relevant compliance declaration is from the Client confirming that, in the case of HRBs, to the best of the Client's knowledge the relevant fire safety information and golden thread information has been provided to the relevant person responsible for the management of the HRB, once occupied, signed by the Client and that person. This declaration needs to accompany the application for building control approval to the Building Safety Regulator at Gateway 3. A similar compliance declaration is also required for buildings regulated by the Fire Safety Order, in respect of the hand-over of relevant fire safety information under Building Regulation 38, but this can be provided as part of the completion process rather than as a pre-requisite to sign-off by the building control authorities.

Breach of building regulations

The Building Safety Act 2022 has introduced tougher sanctions for breach of building regulations. It is now an offence to "contravene a provision of the building regulations" punishable by unlimited fines and/or imprisonment of up to two years. Where these offences are committed by a corporate body with the "consent or connivance of a director, manager, secretary or other similar officer" of that corporate body, or is attributable to their neglect, that person will be liable to be prosecuted as well as the corporate body. For further information see our article here.

Summary

This is an overview of the new dutyholder regime during design and construction which came into force on 1 October 2023, subject to a six month transitional period which ended on 6 April 2024. All duty holders need to be familiar with their duties to enable compliance with the new regime. Where an HRB is involved, the arrangements will need to take into account the additional scrutiny of building control and the requirements to check the competency of those involved (and document the steps taken).