Construction & Engineering

Publish date

22 February 2024

The Building Safety Act – points to note for construction projects

On 24 January 2024, Catherine Piercy KC and Emma Hynes of Gatehouse Chambers spoke at the Society of Construction Law’s Kent event about “Drafting for Safety”, discussing some of the practical drafting considerations arising from the Building Safety Act 2022 (“BSA”).

In this article, we share some of our further thoughts on the key themes that were raised.

  1. The extension of the role of the Principal Designer and Principal Contractor in the Construction (Design and Management) Regulations 2015 (“CDM”)

The Building Regulations etc. (Amendment) (England) Regulations 2023 extend the role of duty holders under CDM (in particular the Principal Designer and Principal Contractor) by way of PAS8671 and PAS8672 to include responsibility for ensuring co-ordination, sharing information relevant to the “golden thread”, and a handover document detailing the duty holder’s compliance once an appointment ends. This needs to be captured within the documents to ensure that the statutory duty is backed by the contractual duty.

Our clients and contacts report that the enhanced duties are causing consternation in the professional indemnity insurance market due to the fact that certain of the duty holders lack immediate evidence as to their competence in carrying them out.  Consequently, premia are at an all time high and cover availability is low.  We have seen the industry response to the difficulty in procuring fire safety insurance in the last 5 years, and the consequent separating out of cover for fire safety professionals from that of consultants generally. It is highly likely that there may also be a split between conventional full-service consultants and those carrying out the enhanced roles of the Principal Designer and Principal Contractor under the BSA.

Insurance issues notwithstanding, there is a new, additional requirement on the client to make a declaration that the Principal Designer/Principal Contractor is competent to carry out its duty holder role. There are concerns that in sub-contracting such important duties, the client will lack control over who is carrying out these functions and could slip up as a result. It is highly prudent for duty holders to approve the contract upon which the sub-contractors or sub-consultants are engaged, to ensure that compliance with the same is contract-backed, and to carry out due diligence on any parties acting as duty holders under CDM.

  1. The gateway regime

The introduction of the gateways for the building regulatory approvals for  Higher Risk Buildings (“HRBs”) are causing some questions to be asked about how they affect procurement in the UK. The enabling works period cannot begin until approval of the planning application, and the planning application must include a consideration of fire safety (the scope of which may not be apparent until enabling works are commenced), so this is something of a dilemma. You could also say that this lack of concurrency defeats the principle of design and build procurement. In particular, the requirements for gateway 2 (the “enabling gateway”) mean that construction cannot begin until the approval is obtained, which begs the question whether the contractor should be involved at this point. Many employers and contractors choose to work together at the enabling stage to discuss the buildability of the scheme and to benefit from the contractor’s experience. Unfortunately, any post-gateway changes to the design need to be approved by the Building Safety Regulator (“BSR”). This is likely to hold up projects and cause design deliberations to be protracted pending approval by the BSR.

There has also been considerable discussion on the achievement of consent at completion (gateway 3). The BSR will assess the final submissions, undertake inspections and issue a completion certificate, but it is not entirely sure at what stage this is done. The issue of whether a building is “practically complete” has been something that has challenged lawyers and clients for years; it remains to be seen whether the gateway 3 approval will play a part in the determination of what is “practically complete” legally speaking, and vice versa.

  1. Change control

Questions are also raised with regard to change control requirements. It is always prudent to agree and document changes in scope throughout design and construction but now, the importance of doing so is more critical due to the additional requirement to have changes signed off by the BSR. It is likely that more intricate change control procedures will be added to construction contracts, allowing for the risk of delayed approval and managing timescales accordingly.

  1. Limitation periods

The extended limitation periods within the Defective Premises Act 1972 and Building Act 1984 are almost certain to affect bespoke and standard form drafting. The Civil Liability (Contribution) Act 1978 also provides that recovery is possible for a claim under the same legislation provided that it is just and equitable. A full belt-and-braces solution to accommodate corresponding contractual liability would be to include provision for both in the limitation clause, but this is likely to be met with reluctance from the commercial construction community on the grounds of preserving contractual simplicity and certainty.

Regrettably, the shifting sands upon which the BSA is making its transition into the legal landscape are not providing the industry with the clearest solutions to these issues at present, but we strongly recommend that they are considered against current and prospective projects to stay ahead of the compliance game.

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