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13th July 2021
As published in the RIBA Journal, 6 July 2021.
The Building Safety Bill was introduced to Parliament on 5 July 2021 by the Secretary of State for Housing, Communities and Local Government Robert Jenrick. Once the Bill has passed through the parliamentary stages, it is expected to become law towards the middle of next year. The resulting Building Safety Act will bring extensive reforms to the regulatory system governing UK construction projects. The aim of the Building Safety Act is to implement the recommendations set out by Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety following the Grenfell Tower tragedy on 14 June 2017. It will represent the most significant changes to building safety legislation for over 40 years and heralds the advent of “a new era of accountability” for those who design, construct and manage “higher-risk buildings”.[1]
Architects are central to the proposed reforms for building designers. The Building Safety Act will give further powers to the Architects Registration Board to regulate the competency of architects by ensuring they have the necessary skills, knowledge, experience and behaviours (“SKEB”) to perform their services. The ARB Competency Guidelines for Fire and Life Safety Design were published in March and comprise 16 core competencies expected of architects.[2] The Act will also include amendments to the Architects Act 1997 to enable the ARB to impose tougher sanctions on those who fail to meet the required criteria.[3]
The RIBA has gone beyond these minimum standards set by the regulator in unveiling its own plans to implement a regime of compulsory testing for UK Chartered Members. From 2023 onwards, architects will be required to demonstrate an understanding of seven core areas including fire safety, design risk management and personal safety in order to renew their RIBA membership. The plans for implementing “Mandatory Competence in Health and Life Safety” will be subject to further consultation with members until mid June.[4]
In addition to these significant advances for raising competency standards, the Building Safety Act will impose further statutory obligations on architects, under the new dutyholder regime proposed for the lifecycle of higher-risk buildings. The Bill implements Dame Judith Hackitt’s recommendation to replicate the existing titles assigned to dutyholders under the Construction (Design and Management) Regulations 2015 (CDM 2015) to achieve what she described as “consistency and clarity across all regulatory requirements, to avoid unnecessary confusion”.[5]
The new Principal Designer role in particular, is likely to have far reaching implications for architects. As with CDM 2015, the Principal Designer can be an organisation or an individual, and is described as being the Designer “in control of the pre-construction phase”. The PD dutyholder is described as being a suitably qualified “guiding hand” empowered to ensure the design intent in relation to building safety is understood, maintained and delivered to the point of handover through “The Golden Thread” of building information. In response to the Hackitt Review’s criticism of fragmented project teams under Design and Build procurement and the widespread use of “siloed” subcontracting, the Principal Designer role is intended to enforce a “robust ownership of accountability” for the responsibility of managing design. Under the Building a Safer Future Consultation, the MHCLG stated:
”The PD HRRB should be part of the role of the lead designer, who will
often be an architect but should always be the designer with the most appropriate professional background for the project.” [6]
[PD HRRB is the Principal Designer on a High-Risk Residential Building].
It has been suggested the Principal Designer role could mark a significant turning point for the architectural profession which has become increasingly marginalised over the last 30 years due to the rise in project management and the dominance of Design and Build procurement. The enhanced competency requirements could serve as a positive declaration of quality and professionalism when compared against other designers. The RIBA has endorsed this position and stated in a professional practice feature published in March 2021:
”An architect is the best person to fulfil the Principal Designer role. When the Building Safety Bill becomes law, architects should rise to the challenge of increased responsibility”. [7]
But in the post-Grenfell climate, which has seen architects’ Professional Indemnity Insurance (PII) premiums increase by as much as 300% over the last three years, it is not clear whether there is much appetite within the profession for taking on the significant liabilities associated with the Principal Designer role. Many architects have also found they are now unable to obtain PII cover for issues relating to fire safety and increasingly seek to exclude this area of design liability from their appointments. Concerns were raised with the Draft Bill published in July last year over the lack of clarity provided for dutyholders with much of the detail for the new regulatory regime yet to be determined under unpublished secondary legislation. The final Bill introduced this week will now be subject to further scrutiny to determine whether these concerns have been allayed. Previous consultations have suggested the Principal Designer’s duties will include obligations to:
There remain fundamental questions concerning how these duties could be performed in practice.
Conclusion
It remains to be seen how chartered architects will respond to the RIBA’s call to rise to the challenge of the Principal Designer role for Building Safety. Two key questions will need to be addressed during the transition period following the introduction of the new Act:
Will the secondary legislation offer much needed clarity over the dutyholder’s obligations?; and,
Will there be an insurance market to support architects wishing to take on the Principal Designer role?
If you require any further information, please contact Paul Jolly at pauljolly@hka.com.
[1] The definition of “higher-risk buildings” is yet to be finalised and may be subject to the building’s size, design or purpose. The Bill suggests the scope will encompass buildings with a top storey of 18 meters or more above ground (or more than six storeys) that contain two or more dwellings or two or more rooms for “residential purposes” (including student accommodation, boarding schools, care homes, secure institutions, hotels, hospitals etc).
[2] The ARB Safety and Sustainability Guidelines were published 25 March 2021.
www.arb.org.uk/architect-information/guidance-notes/arb-safety-sustainability-guidelines-architects/
[3] The MHCLG’s consultation on proposed amendments to the Architects Act 1997 was published 4 November 2020. www.gov.uk/government/consultations/consultation-on-proposed-amendments-to-the-architects-act-1997/proposed-amendments-to-the-regulation-of-architects
[4] RIBA Mandatory Competences survey is available online for members until 17 June 2021. www.architecture.com/knowledge-and-resources/resources-landing-page/mandatory-competences
[5] Building a Safer Future – Independent Review of Building Regulations and Fire Safety: Final Report, p34, Recommendation 2.1. Building a Safer Future: Final Report (publishing.service.gov.uk)
[6] Building a Safer Future Proposals for reform of the building safety regulatory system, A consultation,
Ministry of Housing, Communities & Local Government, June 2019, p153, para 6.0
BSP_consultation.pdf (publishing.service.gov.uk)
[7] ‘Who should be responsible for the safety of a building?’ article published by the RIBA for members on 18 March 2021. www.architecture.com/knowledge-and-resources/knowledge-landing-page/who-should-be-responsible-for-the-safety-of-a-building
[8] The Sentencing Council’s Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences was published on 1st February 2016 which has seen significant increases in fines and custodial sentences for convictions brought under CDM 2015 in order to “secure compliance”.
There remain fundamental questions concerning how the duties of the Principal Designer could be performed in practice”Paul Jolly, Associate Technical Director, HKA
This publication presents the views, thoughts or opinions of the author and not necessarily those of HKA. Whilst we take every care to ensure the accuracy of this information at the time of publication, the content is not intended to deal with all aspects of the subject referred to, should not be relied upon and does not constitute advice of any kind. This publication is protected by copyright © 2021 HKA Global Ltd.