20/01/2025
The Building Regulations (Amendments etc) (England) Regulations 2023, which came into force on 1 October 2023, inserted a new Part 2A into the Building Regulations 2010 (“BRs”) which placed legal responsibilities on those who “commission building work, participate in the design and construction process and carry out the building control function, to make sure building work is compliant with building regulations.” [1] It created two new roles, principal designer (“PD”) and principal contractor (“PC”) who have responsibilities to plan, manage and monitor the design and building work respectively, to ensure that it complies with building regulations. The Phase II Grenfell Report (“The Report”) has looked at these two roles and made some further recommendations to licence PCs and to include supporting statements from PCs and PDs when submitting applications for building control approval.
Licencing
The Report recommends introducing a licencing scheme for PCs who wish to undertake the construction and refurbishment of ‘higher-risk’ buildings [2] (“HRBs)” i.e. those that are at least 18 metres high, or at least 7 storeys, and contain at least 2 residential units, or is a hospital or care home [3]. It is very critical of Rydon, the PC on the Grenfell project, noting that they “displayed a casual attitude” to fire safety throughout the project, had systems for managing work that “did not ensure that its sub-contractors and consultants properly understood their different responsibilities” and failed to ensure that sub-contractors were “competent to undertake the work and capable of providing the services required.”
The idea of licencing principal contractors has been considered previously; in the April 2023 Independent Review of the Construction Products Testing Regime [4], which recommended such a scheme, “placing their ability to operate in the market in jeopardy” which would “act as an incentive to “pull competence up through the supply chain and implement an appropriate level of supervision and inspection.” The 2023 report noted that licencing of main contractors is common in other countries (such as Germany, Denmark and the Netherlands) “by reference to criteria such as academic or trade qualifications, management ability, financial health…” According to Construction News, the Federation of Master Builders has “long called for a mandatory licencing scheme…as a vital way to improve public confidence in the industry and boost professionalism.” [5]
A licencing scheme may have meant that Rydon would have had to demonstrate competence with complying with BRs, and that they had up to date knowledge about fire safety. The Independent Review does, however, note that there are still building failures in countries where contractors are licensed so licencing is not likely to be the solution on its own. There will also need to be consideration of the cost impact of implementing such a scheme.
Statement/Undertaking from PDs and PCs
Under the Building (Higher-Risk Buildings Procedures) (England) (Regulations) 2023 the ‘client’[6] has to submit a detailed Gateway 2 application to the Building Safety Regulator in order to get building control approval before commencing “building work” on a higher-risk building (either a new build or work to an existing HRB). This includes a declaration that the client has assessed the team’s competence to discharge their responsibilities and is satisfied they meet the threshold – for the PD and PC this would include that they have the competence to ensure the work is completed in accordance with the BRs.
The Report also makes two recommendations in respect of these Gateway 2 applications, namely that it is supported by:
- A statement from a senior manager of the PD that all reasonable steps have been taken to ensure that on completion the building as designed will be as safe as is required by the Building Regulations. [7]
- A personal undertaking by a director or senior manager of the PC to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the Building Regulations. [8]
The current Regulations put the emphasis on the client to undertake sufficient investigations into their team’s competence and to keep appropriate documentation relating to the steps they took to satisfy themselves that they are competent to discharge their responsibilities. As part of the Gateway 2 application, the client has to submit a competence declaration, with a signed statement of truth, confirming that the client has checked nay past misconduct and taken all reasonable steps to ensure the PC / PD is competent. The Report recommendations would shift the risk so that more also now sits with the PDs and PCs as they have to provide a statement/undertaking that they have taken/will take all reasonable steps to ensure compliance with BRs, with a particular emphasis on safety.
This individual may well be a different person to the individual (with the skills, knowledge, experience and behaviours necessary) that the BRs require from the PC and PD, if a company, to be tasked with managing its functions and compliance with its duties as PC / PD. The compliance declarations however come from the PC / PD itself, which is normally the corporate entity, rather than this designated individual or any other individual.
When applying for a completion certificate at Gateway 3, the client has to include a signed statement confirming that to the best of the client’s knowledge, the HRB, as built, complies with all applicable requirements of the BRs. The application must also include a compliance declaration signed by each PC and each PD confirming their name and contact details, dates of appointment and a statement confirming that they have fulfilled their duties as a PC / PD under Part 2A (dutyholders and competence) of the BRs. At present, this can be signed by an individual acting on behalf of the corporate, not in their own name. Interestingly the Report does not make any recommendations requiring personal undertakings / statement after the works have been completed.
The PD is usually an architect, surveyor or engineer. In the case of the Grenfell Project, Studio E were the firm of architects. They were chosen without a procurement process and had never worked on a high-rise residential project before. Having to make a statement that all reasonable steps had been taken to ensure the building would be as safe as required by BRs may have given Studio E pause. On the other hand, care must be taken to make sure that the statement does not become a tick box with no thought or force behind it.
Rydon’s successful bid for the Grenfell project initially exceeded the Tenant Management Organisation’s budget, however, before the procurement process was complete, they had discussions with the TMO about reducing the cost. One way of reducing the cost was to use ACM panels for the cladding as opposed to zinc. The Report highlights that Rydon did not give much consideration to whether the panels complied with BRs and at the very least whether they would resist fire across the surface of the building. If a director had had to give a personal undertaking regarding safety and BRs, the company may have been less willing to use a cheaper material without a thorough review of its impact on safety. A robust paper trail will be required so that the PC can evidence that they took ‘reasonable care’ and this is likely to be an area of legal challenge.
Licensing / registration type schemes and increasing accountability seem to be popular and becoming more widespread across the design, construction and fire safety industries. The Government has said that it will carefully consider the Report’s recommendations, to ensure that such a tragedy can never occur again. We will wait to see what its response is to these particular recommendations.
[1] Circular letter: changes to the building control process - GOV.UK
[2] Grenfell Tower Phase II Report Part 14, Chapter 113.33
[3] s65 of the Building Safety Act 2022
[4] Independent Review of the Construction Product Testing Regime
[5] Licensing main contractors could improve safety, Whitehall told | Construction News
[6] Any person for whom a project is carried out (Part 1 para2(1) of the Building Regulations 2010)
[7] Grenfell Tower Phase II Report Part 14, Chapter 113.31
[8] Grenfell Tower Phase II Report Part 14, Chapter 113.33
