Episode 184 - BSA Myths & D&B Viability

This week we will be talking about some of the myths surrounding the Building Safety Act and how the new regime affects Design & Build contracts. This episode content meets PC3 - Legal Framework & Processes of the Part 3 Criteria.

Resources from today's episode:

Websites:

• https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/what-are-the-most-common-myths-for-architects-about-the-principal-designer-role?utm_campaign=Member Update 100425&utm_content=Read more&utm_term=&utm_medium=email&utm_source=Adestra
• https://www.architecture.com/knowledge-and-resources/knowledge-landing-page/building-safety-act-design-and-build-for-architects?srsltid=AfmBOooPCkJp3dlw3-Lh3tzi-J1osDSyuwjSNO0DmxtlRbjWcLLheXsI

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Transcript

Episode 184:

Hello and Welcome to the Part3 with me podcast. 

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I am your host Maria Skoutari and this week we will be talking about some of the myths surrounding the Building Safety Act and how the new regime affects Design & Build contracts. Todays’ episode meets PC3 of the Part 3 Criteria.

And make sure to stay until the end for today’s scenario.

With the Building Safety Act now been in effect since 2022 and the industry having the opportunity to digest the legislation and apply it in practice, a number of items have come to light which may have set preconceived perceptions on certain elements. 

The purpose of todays episode of course it dispelling some of the most persistent myths about the Building Safety Act:

One common misconception is that the Building Safety Act only applies to higher-risk buildings. In reality, while the Act does introduce specific controls for HRBs, the legislation itself amends the Building Act 1984 and Building Regulations 2010, which govern all building work. So, it’s more accurate to talk about compliance with Building Regulations as a whole, since the Safety Act’s provisions have an impact beyond just higher risk buildings.

Another myth is that the Contractor can appoint the Principal Designer. This is not the case. According to the regulations, it is the Client who must appoint the Principal Designer and Principal Contractor. The Client assumes responsibility for these appointments to ensure design and construction duties under the regulations are properly managed. In contractor-led procurement routes like JCT Design & Build, the contractor may be appointed as Principal Designer if they are competent, but the formal appointment still rests with the Client.

Many also wrongly believe the Principal Designer only needs to be appointed right before construction begins. While the legislation states the Principal Designer must be appointed before the construction phase, the best practice—and arguably a legal safer position—is for the Principal Designer to be on board much earlier, ideally from RIBA Stage 2. This gives the Principal Designer the opportunity to properly coordinate, manage, and influence design work to maintain compliance rather than being a last-minute box-ticking appointment.

A further myth is that the Principal Designer must inspect construction work to ensure compliance. Actually, under the Building Regulations, the Principal Designer’s duties relate to design management — not site inspections. Those responsibilities fall more to the Principal Contractor. However, if a Principal Designer acting also as the architect or lead designer notices non-compliant work during design reviews or site visits, it’s important to report these issues to the Principal Contractor. It is important to note that the architect or lead designer responsibilities are not confused with the Principal Designer duties, as this can lead to a further mistaken belief that the completion statement provided by the Principal Designer confirms that the building is compliant – rather the Principal Designers statement upon completion is to confirm that they have complied with their duties under Part 2A of the Building Regulations 2010. For higher risk buildings, safety occurrences must be reported through mandatory systems.

There is also a mistaken belief that a third-party health and safety consultant is best placed to fulfil the Principal Designer role under Building Regulations & CDM regulations. While such consultants have played roles under earlier frameworks, the new regulations clearly expect the PD to be the lead designer, usually the architect, who controls the design and health and safety integration throughout the project phases. This ensures a more cohesive and project-specific approach, rather than generic risk registers that are less effective. Architects with appropriate competence are now realising there is an opportunity to control and integrate CDM and Building Regulations compliance into their designs in a proportionate and deliverable way by expanding services to include CDM PD and Building Regulations PD and being remunerated to do so. For their part, clients are required to give PDs “sufficient time and other resources” to carry out their role(s).

Lastly, some wrongly think Building Control approves or "signs off" the architect’s work. Case law and updated regulations clarify that clients bear responsibility for declaring compliance with Building Regulations at completion. They must provide a formal statement confirming that to the best of the client’s knowledge the work complies with all applicable requirements of the building regulations. Obligations now sit with clients to ensure they make suitable arrangements for the design and construction of building work, and appoint competent designers to discharge their duties accordingly, in doing so being responsible for their own designs and supporting clients in confirming compliance with The Building Regulations.

Now lest look at how the new regime has affected Design and Build Contracts

Historically, under Design & Build, the contractor would take over the design to complete Stage 4 and carry out the construction phase. This sometimes included radical changes compared to the architects original design even if the original architect has been novated. 

This process and the lack of design control over product selection in relation to compliance was one of the critical failings which contributed to the Grenfell tragedy. This lack of design control set in motion the review of the legislative process that has resulted in amendments to the building regulations, that includes the new statutory dutyholder roles, to ensure such an event can never happen again.

Now, the Building Safety Act establishes that the Principal Designer is the party “in control” of the design work during the design phase. Under Design & Build contracts, since the Contractor manages design during construction, the Contractor may need to be appointed as Principal Designer for that phase, provided they demonstrate competence. There are formal provisions for the transfer of Principal Designer duties from the original lead designer (often the architect) to the Contractor under the amended Building Regulations.

However, the original architect can still be retained by the Contractor, where the architect is novated, to support their Principal Designer role, maintaining design expertise and compliance safeguards. For the majority of projects this shouldn’t be an issue where Design & Build is used, the biggest impact may be when it comes to higher risk buildings and the requirements for approval of the relevant requirements at Gateway 2 prior to commencement of construction.

It is expected that there will be impacts on procurement and costs to the extent of questioning whether Design & Build procurement will remain viable for higher risk buildings given the extent of design work that will need to be completed and approved prior to construction. This makes early engagement in the supply chain crucial to manage procurement risks and costs effectively. Meaning adopting Design & Build but engaging with the supply chain earlier enabling the completion of the Stage 4 technical design prior to Gateway 2. 

Due to this, some clients are reconsidering Design & Build procurement for higher-risk projects due to these complexities, favouring traditional or construction management routes that better fit the new regulatory environment.

From a legal standpoint, architects who are novated to Contractors under Design & Build may find it safer to have a clear handover of Principal Designer duties to avoid conflicts of interest and maintain professional independence. In which case there is no reason why a contractor couldn’t take on the role of Principal Designer, as long as they demonstrate necessary competence. This will require the Contractor to provide internal corporate and individual competence and not just appointing an external consultant.

It is crucial, therefore, for architects to clearly discuss and define their duties under the new regime and how these will impact the scope of their role. Duties and fees should be clearly outlined within appointment letters by utilising the new RIBA Building Regulations Principal Designer Professional Services Contract clearly assigning and agreeing duties and responsibilities with the client.

To sum up what I discussed today:

Relating to the myths:

• The Building Safety Act does not just apply to higher-risk buildings; it amends the Building Act 1984 and Building Regulations 2010, affecting compliance requirements for all building projects, making industry-wide understanding critical.
• The Client—not the Contractor—is legally responsible for appointing both the Principal Designer and Principal Contractor, even on contractor-led schemes like JCT Design & Build, ensuring proper oversight and compliance from project inception.
• Best practice dictates appointing the Principal Designer early (ideally from RIBA Stage 2), rather than as a last-minute compliance measure, to maximise influence on design compliance and project management—not to conduct site inspections, which remain the Principal Contractor’s responsibility.
• Regulations emphasise that the Principal Designer role should be held by the lead designer, often the architect, not an external health and safety consultant, with clients required to provide enough time and resources for effective fulfilment of these duties.

Relating to Design & Build:

• Design & Build contracts now face greater scrutiny for higher-risk buildings—early engagement and technical design completion before Gateway 2 are essential, and alternative procurement routes such as traditional or construction management may be preferred to manage compliance and risk under the new regime.
• Formal provisions now exist for the transfer of Principal Designer responsibilities from the original lead designer (usually the architect) to the contractor during construction, provided the contractor demonstrates required competence, ensuring continuous design management and compliance oversight.