The duty holder: principal designer – what have you signed up for? from Clarion Solicitors

The BSA 2022, which received Royal Assent on 28 April 2022, introduced sweeping changes to building safety regulations. A key component of these changes is the duty holder regime, which imposes legal responsibilities on those who commission, design, and construct buildings, as well as those responsible for managing the safety of higher-risk buildings once occupied. Duty holders during the design and construction phases are referred to as “accountable persons” when the building is in use.

The Building Regulations etc. (Amendment) (England) Regulations 2023 (BRAE Regulations) amended the BR 2010 by adding a new Part 2A (regulations 11A to 11Q), which deals with duty holders and their competencies. These regulations came into force on 1 October 2023.

Under Regulation 2 of the BR 2010, a “designer” is defined as any person or organisation who, in the course of business, either carries out design work or arranges for someone else to do so. Therefore, an individual or an organisation involved in design work is a designer under the BR 2010.

A “principal designer” is defined as the designer appointed under regulation 11D to perform the duties of a principal designer. To be appointed as a principal designer, one must first be a designer and must be appointed by the client in accordance with regulation 11D to oversee all design work. This role can be filled by an architect, structural engineer, surveyor, or contractor with design obligations, provided they are competent to do so during the construction phase.

As mentioned, a designer must be appointed as a principal designer under regulation 11D of the BR 2010. Regulation 11D(1)(a) specifies that “the client must appoint in writing” a designer with control over the design work as the principal designer for the purposes of these Regulations. The client may choose to appoint the same person who is the CDM principal designer as the BR 2010 principal designer (regulation 11D(2)).

If the client fails to appoint a principal designer (or a replacement), regulation 11D(5) mandates that the client must fulfil the duties of the principal designer under the BR 2010 until someone else is appointed. This provision places the responsibility for appointing a principal designer squarely on the client.

In a Design and Build (D&B) procurement, the contractor is responsible for both design and construction and is liable to the employer for the design, even if the contractor appoints specialist designers or subcontractors. It is common for the employer in a D&B contract to appoint professional consultants to develop the initial design, which is then novated to the contractor, who takes over the design role to complete Stage 4 and carry out the construction phase.

Under Part 2A of the BR 2010, the principal designer’s role is to plan, manage, and monitor the design work and ensure that the design complies with all relevant requirements. This responsibility begins during the design/planning phase and continues through construction, putting the principal designer in control of the design, regardless of the procurement route.

The question has been raised as to whether a D&B contractor can appoint the building regulation principal designer after the BRAE Regulations amended the BR 2010. Currently, there is limited official guidance on the new duty holder roles under Part 2 of the Building Regulations. However, we can interpret regulation 11D(1) of the BR 2010 and the Health & Safety Executive’s (HSE) guidance on appointing a CDM 2015 principal designer, which aligns with the BR 2010.

Regulation 11D(1)(a) of the BR 2010 states that the client must appoint a designer with control over the design work as the principal designer. Regulation 11D(5) also stipulates that if the client fails to appoint a principal designer (or a replacement), they must fulfil the duties of the principal designer until another person is appointed.

Considering these regulations, it appears that a D&B contractor can appoint a Building Safety Act principal designer, provided they are competent. In the context of D&B procurement, the contractor or principal contractor is typically in control of the design work during the construction phase. Therefore, the contractor should also be the principal designer for this stage of the project.

The Building Regulations provide for a change of principal designer, allowing the function to pass from the lead designer to the D&B contractor, provided the contractor is competent to undertake this function. However, under the CDM 2015, the contractor would not be appointed as principal designer if they did not have pre-construction phase "control" during the initial stages of the project. In such cases, the client might use two documents or professional appointments to appoint the same consultant as both the architect and principal designer, following the letter and spirit of the CDM 2015.

The Royal Institute of British Architects (RIBA) has published a standard form of professional appointment for a consultant performing the role of principal designer under the building regulations. This form is suitable for any commercial project, including those using a D&B procurement method. However, there are prescribed provisions under the BR 2010 for changing the principal designer, which can be used to transfer the role to the D&B contractor, provided they are competent.

In its article “Building Safety Act: how does the new regime affect Design and Build contracts for architects in England?” (19 October 2023), RIBA suggests that in a D&B contract:

"...if a Lead Designer previously appointed as the Principal Designer is novated to a D&B contractor, there is no reason why the contractor could not employ the Lead Designer to support them in fulfilling their Principal Designer duties. This could be done to address any competence issues."

Thus, the legislation indicates that the employer must appoint the principal designer during the design phase. Subsequently, when the D&B contractor assumes the design role to complete Stage 4 and carry out the construction phase, the contractor may reappoint the principal designer initially appointed by the employer to continue in the role. This is especially relevant where the D&B contractor does not meet the competence requirements to perform the role of building regulation principal designer.

A principal designer can limit their liability under the Building Safety Act through various means. One common method is by negotiating caps on liability, either by reference to the type of liability or a specific sum, during the contract formation stage. However, it is important to note that under English law, it is not lawful to exclude liability for death, personal injury or fraudulent misrepresentation.

Furthermore, while a principal designer can delegate certain functions, they cannot delegate the duty itself and retain statutory liability for their duty holder role. The principal designer must ensure compliance with building regulations and safety standards during the design phase.

It is also worth noting that the government has delayed implementing strict liability for designers and principal designers due to uncertainty in the insurance industry about the new duties and a lack of appropriate insurance products for the design community. For the time being, designers and principal designers are subject to the requirement to "take all reasonable steps."

The inquiry established to investigate the Grenfell Tower disaster released its final report, the "Phase 2 Report," on 4 September 2024. The report recommends that an application for building control approval for a higher-risk building must be supported by a statement from a senior manager of the principal designer. This statement should confirm that "all reasonable steps have been taken to ensure that on completion, the building as designed will be as safe as required by the Building Regulations." This statement must be included in the Gateway 2/Building Control Application to confirm that reasonable steps have been taken to ensure safe building designs.

This recommendation emphasises the crucial role of the architect or lead designer in ensuring the safety of higher-risk buildings. As such, firms of architects are expected to shoulder a significant burden of responsibility and, consequently, risk in future construction projects. The requirement for statements from senior individuals opens the possibility of personal civil or criminal liability, which will focus attention on the relevant cover provided under professional indemnity (PI) policies. If applicable standards are not met, architects (and their PI insurers) could face significant claims and regulatory action.

The writer’s experience is that some architects are reluctant to take on the role of principal designer. The imposition of such responsibility and liability does not make the principal designer role any more attractive.