Tom Weld, Kayla Urbanski and Joanna Rogers explain in detail the new duties and obligations of the Principal Contractor under the Building Safety Act and building regulations.
Key aspects of the new regime came into force on 1 October 2023, such as the three-stage gateway regime for HRBs and new dutyholder and competence requirements for construction teams undertaking “building work” (as defined under the building regulations).
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These new regimes have been subject to transitional arrangements. However, 6 April 2024 is when the transitional arrangements end and the new regime becomes fully operational.
With this pivotal date looming, here we review the new role of Principal Contractor (PC) introduced via the BSA and the Building Regulations etc. (Amendment) (England) Regulations 2023 (the BRAE Regulations).
What is the role of the Principal Contractor under building safety legislation?
The BSA and the BRAE Regulations created a new dutyholder regime applicable to all “building work” (defined under the building regulations) in England (with limited exceptions). The regime seeks to codify best practice in relation to the key construction team member’s roles in ensuring compliance with the building regulations, and to improve competence across the construction industry.
Those familiar with the Construction (Design and Management) Regulations 2015 (CDM Regulations) will immediately recognise that the new dutyholder roles introduced by the BRAE Regulations mirror the terminology used in the CDM Regulations (i.e. the Client, Principal Designer (PD) and PC).
However, while a party is permitted to hold roles under both regimes, the new Client, PD and PC roles created under the BRAE Regulations are separate and distinct from the roles under the CDM Regulations and impose significant new duties and obligations on each of the new dutyholders.
In relation to PCs, the dutyholder regime under the BRAE Regulations requires them to:
- plan, manage and monitor building work during the construction phase of the project;
- coordinate matters relating to building work to ensure the work complies with all relevant requirements of the building regulations (it should be noted that this is an absolute obligation on the PC, which is in contrast to the obligation on the PD to ‘take all reasonable steps’ to ensure that the design, if built, complies with the requirements of the building regulations);
- take all reasonable steps to ensure that they and others on project, cooperate, communicate and coordinate their work with other dutyholders so that work complies with all relevant requirements;
- liaise with the PD and share information with them that is relevant to the planning, management and monitoring of design work and coordination of design and building work to ensure compliance with all relevant requirements (having regard to any PD comments);
- if requested, assist the Client with providing information to others; and
- where the work is to an HRB, establish and maintain a mandatory occurrence reporting system for safety occurrences, collate the relevant golden thread information throughout the construction phase, and provide a compliance declaration to the Building Safety Regulator (BSR) within the completion certificate application to confirm it has fulfilled its PC functions.
Further to the above, while a PC is permitted to delegate aspects of its role to third-party consultants and/or subcontractors, it should be noted that legal responsibility for the performance of the PC role will be with the PC, irrespective of such arrangements and the PC cannot avoid liability for any failure to deliver the PC functions by delegating performance to third parties.
What are the competency requirements for a PC?
Before a contractor accepts an appointment as PC, it must be certain that:
- where the person is an individual, it holds the skills, knowledge, experience and behaviours necessary,
- where the person is not an individual, it holds the organisational capability,
to:
- carry out the building work in accordance with all relevant requirements; and
- fulfil the PC functions as summarised above.
In making this assessment, it is important to note that ‘competence’ is not defined under the BRAE Regulations and there is no prescriptive test to measure it. Rather, this is a subjective assessment on a case-by-case basis that will need to take into account the size, nature and complexity of a project.
However, it is worth noting that two new Publicly Available Standards (PAS) have been published – PAS 8670 (Core Principles of Competence) and PAS 8672 (Competence for Principal Contractors) – which provide frameworks that can be used to assist in establishing and evidencing competence.
What are the consequences of non-compliance?
Failure to comply with the requirements of the BRAE Regulations could constitute a criminal offence and lead to significant sanctions, including unlimited fines for organisations and unlimited fines and up to two years imprisonment for individuals. For this reason, it is important that a contractor only takes on the PC role where it can meet the required functions.
A step change for construction
Looking beyond the BRAE Regulations, another key aspect of the building safety regime is the step change to make Building Control a regulated profession.
Building Control professionals in England are required to register with the BSR on or before 6 April 2024 (and demonstrate their competence to perform their duties on or before 6 July 2024) and cannot undertake Building Control activities after this date if they are not registered with the BSR.
With the move to create a regulated Building Control profession and given the ongoing drive to improve competence across the construction industry, there has been some speculation as to whether the direction of travel indicates an eventual intention to regulate the PD and PC dutyholder roles.
While building safety remains an evolving area, we do not anticipate that the PC role will become a regulated role comparable to Building Control. The PC will obviously play a crucial role in quality assurance during the construction phase of a project but, given the diverse nature and scope of projects, the PC role will, by its very nature, be quite fluid and will require a degree of flexibility in its performance which would not be readily subject to further codification within a regulated industry.
Notwithstanding the above, the new dutyholder roles introduced by the BRAE Regulations represent a step change in the delivery of design and construction services in England. It is anticipated that the new regime, while imposing significant duties and obligations on designers and contractors, will assist in elevating standards and competence across the industry resulting in improved levels of building safety within the built environment.
As always, we will continue to monitor this space for developments.
Tom Weld is director, Kayla Urbanski solicitor and Joanna Rogers senior apprentice solicitor at Burges Salmon’s construction and engineering team.
