With all of the commentary in the market around the impact of the Building Safety Act 2022 on the development of higher-risk buildings (HRBs), it is easy to miss the updates to the Building Regulations, which apply where you are not developing an HRB. These come in the form of the Building Regulations 2010 (as amended by The Building Regulations etc. (Amendment) (England) Regulations 2023) (the Building Regulations).

Although the changes may appear to be limited, one of the key updated requirements is for declarations to be submitted at the point that the works are completed.

As our clients look ahead to completing their development projects, questions have repeatedly been asked about what the compliance declarations look like, who are the dutyholders, and who needs to provide them. We have seen a tendency for these declarations to be viewed with some apprehension.

In this article, we will demystify the position and provide some helpful guidance and top tips.

Who are the dutyholders?

During the design and construction phase, the dutyholders are the Client, the Designers, the Principal Designer, the Contractors and the Principal Contractors. For the purpose of this article, we are focusing on just those parties who are required to provide declarations at completion: the Client, the Principal Designer and the Principal Contractor.

The dutyholder regime

The key point is that the dutyholder regime creates accountability for those involved in the design and construction of all new buildings, not just HRBs. It also extends to refurbishment work on existing buildings to which the Building Regulations apply (save for non-notifiable works).

Who is the Client?

The Client is the person for whom the building work is done – the person who has instructed the works. This would typically be the developer or the building owner. As with the CDM Regulations, there could be more than one client and, in those circumstances, they can agree and nominate a lead Client.

One of the Client's duties under the Building Regulations is to appoint a competent Principal Designer and Principal Contractor. These are specific roles that are set out in the Building Regulations, despite having the same name as similar roles that are set out in the CDM Regulations.

Although this is required for all works, remember that there are additional duties for HRBs: for example, the Principal Designer and Principal Contractor must be appointed before the building control application is made, and the Client must create and maintain the golden thread of information about the building and its construction.

Who are the Principal Designer and Principal Contractor (under the Building Regulations)?

The Principal Designer is in control of all the design work and has overall responsibility for ensuring compliance with the Building Regulations and building safety during the design phase. The Principal Contractor is appointed to ensure compliance with the Building Regulations and building safety during the construction phase. Each must only accept their roles if they are competent to do so.

There are enhanced obligations for HRBs which relate to the processes, information-sharing and record-keeping expected of these dutyholders and in respect of demonstrating their competency.

What are the dutyholder compliance declarations?

Within five days of the completion of the building works, the Client, the Principal Designer and the Principal Contractor must provide a signed compliance declaration which confirms that:

• in the case of the Client: to the best of the Client's knowledge, the work complies with all applicable requirements of the Building Regulations; and
• in the case of the Principal Designer and Principal Contractor: that they have fulfilled their duties under Part 2A of the Building Regulations.

There is also a similar compliance declaration for circumstances where the Regulatory Reform (Fire Safety) Order 2005 (FSO) applies. This is relevant to most buildings which will be occupied before completion of the works. The declarations must also be given at least five days before such occupation (again by the Client, the Principal Designer and the Principal Contractor) confirming that, regardless of completion of the works, the part which will be occupied complies with the Building Regulations and that the duties have been fulfilled.

Top tips

• When drafting contracts and appointments, consider adopting a similar approach to the familiar drafting used for compliance with the CDM Regulations and include a clear requirement to carry out dutyholder roles competently, as well as providing the written declarations.
• If works will be completed in sections, make provision for a declaration to be given for each section.
• If works involve buildings which are intended to be occupied before completion, do not allow such occupation until the declarations under the FSO have been given.
• In the case of multiple clients, record in writing who will take the role of the lead client.
• Consider who is the appropriate person to sign the declarations. This may be an individual or an organisation.
• Agree a template for the declarations at the outset to save any delay in collating satisfactory paperwork at completion.
• Remember the takeaway message – the need for the declarations is not intended to trip anyone up. The declarations are not seeking anything "above and beyond" what should be known and true in any event.

If you have any questions regarding this article, please get in touch with the UK Construction team at Dentons for tailored advice about your project.

This article relates to the position in England.