The pitfalls of the principal designer

The Building Safety Act 2022 introduced a plethora of changes for developers, contractors, property owners and asset managers alike – one of them being the introduction of the Building Regulations “principal designer” role. Almost 18 months on from its introduction, the industry is still struggling to decipher what exactly their duties are under the 2022 Act. Following recent updates to the Building Regulations 2010 (amended 2023), and increased scrutiny on building safety practices in the wake of Grenfell, it is more crucial than ever that those in the industry get on top of these regulatory processes and ensure they are fully aware of the changes in roles, responsibilities and liabilities. Getting familiar It has become evident there are many subject to these regulations who are still unaware of their duties. Some of this confusion stems from the fact that the new principal designer role under the Building Regulations has the same name as the existing principal designer role under the Construction (Design and Management) Regulations 2015. The current guidance produced by the likes of the Health and Safety Executive and the Royal Institute of British Architects is inconsistent and generally stops short of expressly defining what is and isn’t acceptable or required from the Building Regulations principal designer. In terms of the naming of the role, it seems clear the government’s intention is that (under normal circumstances) both principal designer appointments (CDM and Building Regulations) should be the same person. It considers that the role should be someone who is centrally involved in the design process, with the ability to control it. The published guidance suggests the Building Regulations principal designer role should not be sub-consulted out to someone outside the core design team, which was also the intent when they transferred from the CDM coordinator role to the CDM principal designer. But in truth, this has never happened. It remains commonplace that the CDM principal designer role is fulfilled by consultants, who have little control over the design process, rather than the lead designer. It appears the HSE see these regulations as trying to enforce this role being someone central to the design team, ie the architect. However, the regulatory bodies have stopped short of stipulating this, which raises ambiguity. The issue of liability The introduction of the regulations has also resulted in increased liability for clients, contractors and those undertaking the Building Regulations principal designer role. The new regime requires the principal designer to submit a statement detailing how the scheme will comply with the Building Regulations, with the intention of introducing a single point of accountability for design. This requirement has been received by the industry with some caution, given the potential increased liability this creates. It should also be noted that a Building Regulations principal designer may be liable for building safety for up to 15 years under the provisions of the 2022 Act, which is a timescale that exceeds normal statutory limitations and places an extended insurance burden on consultants and clients alike. This situation is compounded by uncertainty in the insurance market with regard to the extent of liability associated with the principal designer role, with the acid test likely to be when the first case goes through the courts. Furthermore, contractors may find it difficult to obtain commercially viable insurance to cover their increased liability for taking on the role, which is likely to have a knock-on effect throughout the industry. The long game Extended timescales, and hence increased cost and uncertainty, associated with the regulatory approval process is another key issue resulting from the regulations. However, this is far more significant and onerous in respect of high-risk building projects, which are subject to the gateway approval process. It is noteworthy that since the introduction of the regulations, only a handful of such projects have passed the Gateway 2 approval process, which rightly or wrongly is clearly having a significant constraining effect on the market and the delivery of these types of buildings. There also seems to be a challenge with regard to contractors embracing and understanding how the construction stage services should be delivered – we are seeing some pushback from contractors in accepting their duties at construction stage, which is forcing the market to think differently as to how to meet obligations. Impacts on design and build procurement Another key issue is the implications of the regulations on design and build procurement, arguably the most popular procurement strategy in UK construction. Typically, in design-and-build procurement, the architect is novated to the contractor for the post-contract design phase – this provides clients with continuity in design and gives the contractor confidence the architect’s appointment will provide them with back-to-back protection on the pre-contract design. It would also seem logical that an architect who was the client’s appointed principal designer pre-contract would continue in this role once novated. However, this is contrary to the guidance from HSE and RIBA, which makes clear that, as the contractor has control of the design during the post-contract phase, they must be the party to take on the principal designer role. According to the guidance provided by RIBA, under normal circumstances, the architect is unlikely to be able to remain as the client’s appointed principal designer post-novation due to a lack of control and potential conflicts of interest. Contractors can take on the principal designer role themselves, but it can’t be the novated architect. Importantly, the principal contractor compliance form and the principal designer compliance form at the end of the project will both need to be signed by the contractor. Industry reaction It is clear the industry is not moving away from design-and-build processes. Crucially though, if contractors start saying they cannot work to the new regulations, or the insurance market becomes a significant barrier to contractors taking on the principal designer role, then there may have to be a change – indeed many are already coming up with workarounds which are variously contrary to the pure intentions of the regulations. These include the engagement of the architect as Building Regulations principal designer adviser, or the sub-contracting of the principal designer role by contractors to external consultants. Workarounds need to be carefully considered by both contractors and clients as they clearly present potential conflicts of interest and pose potentially increased liability – should things go wrong – if they shift away from the HSE’s interpretation of the regulations. We are already aware of certain residential project schemes being deliberately kept beneath the high-risk building threshold in order to avoid the delays and increased costs associated with the gateway approval process. The need for clarity The different reactions from project managers and principal designers appears to be due to differing interpretations of how they need to respond to the new regulations. People will make their own interpretations if guides are not clear, and this is when things could go wrong. If the HSE would come out and say how it sees things working, perhaps it would all be clearer. With every guide available being different, it is imperative the HSE, RIBA and other relevant bodies get their act together and produce one coherent set of guidance. Without this, the trend of architectural practices refusing to undertake the Building Regulations principal designer role, and others sub-contracting the role out, will only continue and concerns about the market’s capacity to fulfil these roles will increase. For now, parties responsible must get thoroughly acquainted with the requirements of these regulations and the associated pitfalls to ensure they are in the best position possible to deliver projects in a timely and strategic manner, avoiding unforeseen liabilities. Robin Castle is a project management partner at Hartnell Taylor Cook