A closer look at the 2023 Building Regulations etc. (Amendment) (England) Regulations 2023 and their impact of project dynamics

The amended regulations aim to achieve three objectives: Mandate the competency of persons involved in the compliancy aspects of design and construction; introduce clear and unambiguous separation between design compliancy construction compliancy; and assign new obligations on four key Dutyholders to the project: -

• The Client (importantly, this is ‘the person for whom the works are being carried out’)
• The Principal Designer for Building Regulations Compliancy (PDBR)
• The Designers
• The Principal Contractor for Building Regulations Compliancy (PCBR)

The regulations set out clear definitions of the roles involved:

• Competent Designers prepare compliant designs around the Client’s information
• The PDBR verifies the compliancy of those designs
• The PCBR ensures compliant construction, based on the design

The Client acts as enabler; ensuring that the other Dutyholders have the competency, resources and sufficient time to fulfil their own duties. Under the new Regulation they are also obliged to provide building information, as soon as is practicable, to every designer and contractor on the project.

Implicit within this requirement is the need to define the project objectives (the brief) and to define what ‘reasonable’ and ‘adequate’ provision is to be incorporated into the design with respect to Schedule 1 of the Building Regulations.

The knock-on effect of these arrangements is that the Contractor can no longer verify design compliancy; equally, the Designer can no longer verify construction compliancy. Every party plays to their strengths!

If you sit outside of the industry, this will sound like common sense: It is. But it only serves to restore a balance that’s been slowly and almost imperceivably eroded over many years by bespoke contracts, project roles absent of qualification, ignorance of regulation and risk avoidance. At our practice, we’ve taken a proactive approach, embracing the new regulations and assisting in the understanding of our clients and fellow consultants.

The Client role

The regulations require the client to do some heavy lifting before the project gets underway: It’s their venture, their investment. They need to assure themselves, and evidence, that they’ve picked the most competent team for the job.

They also need to ensure that all briefing information is provided as soon as is practicable to every designer and contractor on the project, This information should adequately communicate the project objectives, so that the Designers can make ‘reasonable’ and ’adequate’ provision against them, with respect to Building Regulations compliancy.

This is a complex, time-consuming process, which is now regulated for: From 1st October 2023, ‘the Client must make suitable arrangements for planning, managing and monitoring the project (including allocation of sufficient time and other resources). Before they start the works, they must also make two mandatory and direct appointments of individuals to help them discharge this duty: -

a) The Principal Designer for Building Regulations Compliancy (PDBR)

b) The Principal Contractor for Building Regulations Compliancy (PCBR)

Determining a compliant brief
The Building Regulations mandate ‘reasonable’ and ‘adequate’ provision for almost every aspect of building regulations compliancy. An accompanying set of Approved Documents offer generic solutions on how such provision might be achieved, but they are based on ‘common building solutions’ and increasingly fall short of providing all the answers. It is the client and their designers who must determine what ‘reasonable’ and ‘adequate’ mean in terms of a business case and long-term business strategy.

Taking fire safety as an example, Approved Document B doesn’t require the asset to be protected, other than for life safety. It’s totally acceptable for the asset to burn to the ground, so long as no harm is inflicted on persons or to adjacent property. Considering the scale of investment required to deliver a building project, does this sound reasonable? Scratch the surface and the approved documents don’t necessarily offer the best outcome for the Client.

As a consequence, an appropriate amount of time must be afforded the briefing process, so that every aspect of ‘reasonable’ and ‘adequate’ provision can be discussed and resolved with the project stakeholders before design begins. The Client cannot approach this task this alone, they need help from other Designers and (new for 2024) from the Principal Designer for Building Regulations Compliancy.

The Principal Designer for Building Regulations Compliancy (PDBR)

The PDBR dominates the ‘pre-construction phase’.

They are the ‘Designer with overall control of the design’ in relation to building regulations compliancy. They: -

• Plan, manage and monitor the compliancy aspects of all design work during the design phase
• Verify the compliancy aspects of all design work, including completeness of those designs
• Cooperate with the Principal Contractor

They do not design: They are there to advise on and to coordinate the scope, programme, resourcing and compliancy outputs of the other designers. Although the revised Building Regulations permits the appointment of a PDBR to take place at any time during the pre-construction phase, the later they are appointed, the more the design may have to be un-picked and scrutinised by them. Much better to bring them along with the design, benefitting from their expertise and involving them in the design coordination process from the off.

Who the PDBR is depends on the nature of the project. They must be competent in leading the designers on a path of design compliancy, so need to be an expert in the building type under consideration. For a typical AHR project we’d expect the architect to take on the role. On a DfMA project we’d expect it to be filled by manufacturer, and on complex design and build projects by the contractor. Similarly, on a building where the design is predominantly services-driven, the PDBR role would naturally fall to the MEPD Consultant. Clients will need to take advice on the best recourse for them during Workstage 1 activities.

We are fully prepared to take on the role of PDBR, where appropriate to the project. We’ve reviewed our individual competencies, developed a Scope of Service and designed and tested a set of verification processes to support any colleague who steps up to the task.

These processes include a robust methodology for establishing with the Client their requirements for ‘reasonable’ and ‘adequate’ provision with respect to Building Regulations Compliancy the design progresses.

Our approach begins on commencement of RIBA Workstage 2 design activities and reaches its hiatus at the end of Workstage 4, when Building Regulations approval has been granted. Thereafter, we expect to be retained by the Client in order to meet the ‘co-operation’ requirement of the Regulation and support the PCBR in answering queries on construction compliancy.

The Designers

The ‘Designers’ are every member of the design team, including those appointed by the contractor to undertake contractor design portions. Under the new Regulations the Designers are duty-bound to cooperate with the PDBR, who has some degree of authority over their decision-making and on the timing of their coordinated outputs.

Our PDBR will expect each Designer to sign off their coordinated design outputs as being Building Regulations compliant, ahead of any Full Plans submission. At this point the PDBR will have steered the compliancy aspects of the design to yield the best outcome for the Client; so when the PDBR comes to sign off the overall design, they are doing so in the knowledge that, so far as reasonably practical, every compliancy base has been accounted for by the Designers.

How does this affect Pre-Construction-Phase Procurement?
If the spirit of the revised Building Regulations are to be upheld, then demonstrating building regulations design compliancy should be completed and formally approved during the pre-construction-phase. This is now mandatory on ‘Higher Risk’ categories of building, and we’d recommend that Clients take this same approach on all other categories of building work. To not do so simply introduces unnecessary and potentially expensive compliancy risks into the project.

We are hopeful that the industry trend, of contractors completing specialist designs during the construction phase, will be kicked into the long grass by clients in 2024. It is simply not possible to successfully design and to construct at the same time: to do so removes all chance of developing planned, managed and monitored solutions.

We envisage the increased use of Pre-Contract Service Agreements from January 2024, that allow the ‘design’ aspects of design & build scenarios to be instructed and funded ahead of Contract. We also envisage an increase in scope regarding Client-appointed designers. If certainty of design compliancy is required during the pre-construction-phase then it’s the Client who must enable this.

The Principal Contractor for Building Regulations Compliancy (PCBR)

The PCBR then dominates the ‘construction phase’.

The design is complete and the works can start on site. It’s now the role of the PCBR to oversee the compliancy, testing and certification aspects of construction and to provide written verification that the works, as constructed, are compliant with the project standards.

The PCBR is directly appointed by the Client so as to act independently of and without influence from the Principal Contractor. It should not be confused with that of the old Clerk of Works, for as well as routinely inspecting and reporting on the works, the PCBR leads on the compliancy sign-off of those works.

Will the regulations achieve what they set out to achieve?
At our practice, we’re hopeful that they will. We see evidence, through the bidding arena, that Clients are starting to reinforce their ‘evidencing of competency’ criteria.

We’re also pleased to report that we’re now acting as PDBR on at least three projects, and that the processes and experience our Principal Designers have brought to the table are making a positive difference to managing the compliancy aspects of the design.

Moving forward, we are here to help our clients understand the purpose of the Regulations, and that they apply them in the spirit they are intended, then the future of the built environment will become that bit brighter.

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