Can a Contractor Act As Building Regulations Principal Designer?

Under the Building Safety Act 2022 (“BSA”) and secondary legislation, the Building Regulations Principal Designer role (“BR PD”) is a strict obligation and therefore carries strict liability. Further, for the purposes of the BSA, there is an emphasis that the BR PD must be a designer under Regulation 11D of the Building Regulations etc. (Amendment) (England) Regulations 2023 (the “Amendment Regulations”).

To comply with the associated duties, the organisation appointed as BR PD, must meet two distinct categories of competence:

1. First, they must have the organisational capability to perform the duties of the BR PD. This competence can be demonstrated in a number of ways such as having management systems and processes in place, policies covering the area, and of course formal training for the role. Also note, that British Standard – PAS 8671:2022 – provides greater examples and insight on the organisational capabilities BR PDs.
2. Secondly, the organisation must appoint an individual with the required capabilities to comply with the duties and act as the key point of contact for each particular scheme. For Higher-Risk Buildings (“HRBs”) this individual will be signing the compliance statement at Gateway 2 under the HRB Procedures Regulations, as well as the compliance declaration at the end of Gateway 3. For Non-HRBs this individual will be signing the compliance at practical completion. The individual’s competence can be demonstrated by the individual having completed formal training, maintaining a portfolio of work experience, and a professional body accreditation.

Where a contractor does not hold both the organisational competence and the individual competence to act as the BR PD, it should not take on the role of BR PD. The role (including improper appointment) comes with a potential criminal liability both against the organisation and the individual.

Further, it is not in the interests of the employer to try to force a contractor to take on this role if it is not competent.  The employer, as ultimate client, is also a duty holder under the BSA regime and the “client” carries ultimate responsibility for appointing competent individuals for the key duty holder roles. Therefore, it is in the interests of the employer to ensure it has the proper persons in place because otherwise it will open itself up to liability. Note though that if the contractor is not able to act as the BR PD, it will not prevent it from acting as the CDM Regulations Principal Designer, the CDM Regulations Principal Contractor or the Building Regulations Principal Contractor under the BSA.

There is a debate within the market as to whether the BR PD role can be sub-contracted to others.  Our view is not. However, even if the position is clarified and it is permitted to do so, the contractor would remain liable (notwithstanding it has sub-contracted out the role).

This is a complicated and relatively novel area, with parties still familiarising themselves with the scope and extent of obligations under the BSA. If you are faced with appointing these roles, please get in touch so we can advise you of your obligations.