Building Safety Act duties – not just for residential projects

As discussed in previous blogs on the changes introduced by the Building Safety Act 2022, many of the new safety requirements apply to residential buildings – the management of safety risks in occupied high-rise residential buildings and registration requirements, for example. Much of the commentary and guidance from the government and the Health and Safety Executive on the design and construction of buildings relates to "higher-risk buildings" which are over 18 metres or seven storeys in height and which contain at least two residential units or are hospitals or care homes (HRBs).

If your construction project doesn't involve an HRB, you might therefore assume that the Building Safety Act changes are not relevant to your project – but that may not be the case. The new dutyholder and competence regime introduced as Part 2A to the Building Regulations 2010 needs to be considered. The government has introduced the new dutyholder requirements for all building works so as to ensure a stronger focus on compliance with the building regulations across the industry.

The details of the regime are set out in the Building Regulations etc. (Amendment) (England) Regulations 2023 which were published in August alongside several other sets of building safety related regulations. These regulations insert a new Part 2A into the Building Regulations 2010. A transitionary regime will apply to projects that are already underway or are starting imminently (the details of which are outside of the scope of this blog), but, for new projects that fall outside of the transitionary arrangements, the new dutyholder and competence requirements will apply once the new regime comes into force on 1 October 2023. The new regime applies to both HRB projects and other types of building work (though some enhanced requirements apply only to HRBs). Works to extend or provide a new commercial building would be subject to the new dutyholder requirements, for example.

Those involved in construction projects will be familiar with some of the terminology used in the Part 2A regulations as the government is taking a similar approach to that under the existing CDM Regulations 2015. There is a "client", a "Principal Designer", a "Principal Contractor", "designers" and "contractors". As with the CDM Regulations, where there is more than one potential client for the building work, the clients can select which of them will be treated as the client for the purposes of the Part 2A regulations.

Broadly speaking, the duties in Part 2A require the client to plan, manage and monitor the project so as to ensure compliance with the relevant building regulations requirements, provide information to the project team, and cooperate with the team to enable any person with a duty or function under the regulations to fulfil that duty or function. The client must also ensure that it appoints a Principal Designer and Principal Contractor in writing before the construction phase begins (or before a "Gateway 2" application is made where HRB works are involved).  The client also has to take reasonable steps to satisfy itself that the dutyholders it is appointing fulfil the relevant competence requirements under the Part 2A regulations.

Developers with projects in the early stages will need to consider whether the Part 2A duties apply to their project and ensure that they take the steps necessary to comply with the new duties imposed upon them.