Who’s Responsible? Principal Duties Under the Building Regulations

More than two years on from the introduction of the amended Building Regulations, Jonathan Harris reflects on how the new statutory Principal Designer and Principal Contractor roles are operating in practice, and why Design and Build procurement should offer the clearest route to accountability, provided responsibility is allocated to those with genuine control.

Introduction

It is now more than two years since the Building Regulations etc. (Amendment) (England) Regulations 2023 came into force, formalising the statutory roles of the Principal Designer (BRPD) and Principal Contractor (BRPC) for building regulation compliance. I thought this would be a timely opportunity to take stock and reflect on how effectively the industry has responded to these changes, and whether the original intent of the legislation is being realised in practice.

The new roles were introduced to address longstanding ambiguity around responsibility for building safety and regulatory compliance. In essence, they seek to apportion obligations that, in many cases already existed in custom and practice, but which lacked statutory clarity and accountability.

In previous commentary, including an article published in December 2023 and a subsequent industry podcast, I emphasised the importance of correctly allocating the BRPD duties to the appropriate party and individual. In this article, I wanted to focus specifically on Design and Build (D&B) procurement, where responsibility should, in principle, be the clearest. Other procurement routes – such as traditional or traditional with contractor’s design portion – raise more complex issues and would need more than the 1,750 words that I’ve tried to work with here!

Why the New Statutory Roles Were Necessary

The need for legislative reform became unarguably clear following the Grenfell Inquiry. One of the most striking findings was the extent to which responsibility for design and construction decisions had become fragmented and blurred. No single party could be said to have exercised overall control or coordination of the design or construction. The BBC produced a fascinating chart labelled the “web of blame”, which captured a culture of diffused responsibility, where accountability was diluted across a myriad of consultants, contractors, and sub‑contractors (many with design “responsibility”). This environment enabled blurred lines of responsibility, leading to regulatory failure and ultimately – disaster.

The amended Building Regulations were intended to dismantle that web and replace it with clarity. At their heart is a simple premise – there must be identifiable parties with demonstrable control over design and construction, and those parties must be competent to fulfil those responsibilities.

Critically, the Regulations reinforce the role of the Client as the party ultimately responsible for the asset. The Client must appoint a BRPD and a BRPC who possess the requisite skills, knowledge, experience, behaviours, and control, ensuring that the scope of their appointments is clear and appropriate.

This responsibility framework can be clearly illustrated as a triangle comprising the Client, the Principal Designer, and the Principal Contractor. Importantly, while the Client remains ultimately accountable for appointments, the day‑to‑day discharge of statutory duties sits squarely with the identified duty holders.

Principal Designer Responsibility in Early Design Stages

Under a typical D&B procurement route, the Client will first appoint professional consultants and design team, commonly at RIBA Stage 1. At this early stage, the architect is ordinarily the lead designer, and provided they have the appropriate competence and authority, should also act as BRPD. There is nothing novel or unreasonable in this.

The BRPD role, at this point, is concerned with ensuring that the design complies with the Building Regulations to the extent relative to the stage of design reached. At this early design, there is a far smaller team of designers, and the design is far less developed relative to detailing and regulatory control.

Provided the architect can demonstrate sufficient skills, knowledge, experience, behaviours, and control, this role aligns naturally with their existing professional responsibilities.

Transition to Design and Build

As the project progresses, a Design and Build contractor will be introduced. Under the unamended JCT Design and Build form, the contractor assumes responsibility for both design and construction.

At that point, a fundamental shift occurs as the D&B contractor becomes the lead designer in contractual and practical terms. Accordingly, it is entirely logical – and consistent with the Regulations – that the contractor also assumes the roles of not only the BRPC but crucially also the BRPD.

The architect, (either existing architect novated to D&B contractor or newly appointed architect), alongside other consultants, becomes a “designer” within the contractor’s supply chain, reporting to and being coordinated by the D&B contractor. The responsibility triangle effectively collapses into a direct line of responsibility between Client and Design & Build Contractor, thus creating an unequivocal single point of responsibility for the coordinated design and construction of the works.

Where these principles are properly applied, the clarity of responsibility is stark. There should be very limited scope for the re‑emergence of a “web of blame” of the type identified by the Grenfell Inquiry.

Single‑point responsibility under D&B procurement has always been one of its fundamental attractions. The amended Building Regulations reinforce that principle.

Industry Resistance and Its Consequences

Despite the apparent logic of the legislative framework being applied under the principles, we continue to see cases of resistance (albeit reducing) from both architects and contractors to taking on these statutory roles, which invariably they are best placed to deliver.

We are still seeing cases where architects decline to accept the BRPD role prior to D&B Contractor appointment, often citing an inability to obtain professional indemnity insurance or a perceived lack of competence to undertake the role. Similarly, many D&B contractors are still attempting to “sub‑contract” the BRPD role to third‑party consultants, citing similar concerns.

This should give Clients cause for concern. If a party states that it is either unable or uninsured to undertake a statutory duty which sits squarely within its professional and contractual remit, it must be questioned whether that party is suitable for appointment at all – again, it is ultimately the Client’s statutory duty to ensure it has appointed the right parties.

Competence is not an optional extra; it is a statutory requirement.

The Concerning Rise of the ‘Third-Party’ BRPD

Perhaps the most concerning recent trend is the increasing appointment of what I refer to as ‘third‑party’ Principal Designers. These appointments are often presented as a pragmatic workaround where the natural duty holder is unwilling to accept the role.

Common justifications include assertions that the third party is a qualified designer, or that they bring robust administrative systems, checklists, and coordination processes. However, these justifications tend to miss a fundamental point: control.

The BRPD role is not merely an administrative or advisory function. It requires genuine control over the design process and all the designers involved in it. Under a D&B contract, only one party truly possesses that control – the D&B contractor.

The contractor determines which designers are appointed (including sub-contractors with design obligations), when they are appointed and what design responsibilities they carry. No external consultant, however diligent, can exercise equivalent authority when it is ultimately a D&B Contractor making these appointments through its supply chain. Without that control, the statutory role is hollow.

A Practical Scenario: Where Does Liability Sit?

To illustrate the risks inherent in misallocating the BRPD role, consider the following scenario.

A D&B project has reached practical completion. The Client has appointed a third‑party consultant as BRPD. The D&B contractor asserts that the design fully complies with the Building Regulations, however the BRPD is not satisfied with the suitability or competence of one of the contractor’s designers and declines to issue a compliance statement.

• Who is responsible for the delay?
• Is it a Client‑caused delay (caused by its appointed BRPD), giving rise to an extension of time and potentially loss and expense?
• Is it a contractor default, exposing the contractor to liquidated damages?

The answer would inevitably depend on the specific facts and contractual provisions, but the mere existence of this debate highlights the problem.

By deviating from the clarity that single point of D&B responsibility brings, and thus fragmenting responsibility, the parties have reintroduced precisely the uncertainty that the legislation was designed to remove.

A Concerning Industry Example

Recently, our Practice received a deeply troubling response from a third‑party BRPD. As a matter of course towards the end of a project, our employer’s agents write to the BRPD seeking confirmation that the design complies with the Building Regulations. The full wording mirrors the Regulations but for brevity essentially requests that the BRPD confirms it has:

• fulfilled the role of Principal Designer;
• possessed the necessary skills, knowledge, experience and behaviours;
• has ensured cooperation and communication between all designers, the Client and the Principal Contractor;
• has coordinated all design work so that, if built in accordance with that design, the works would comply;
• and was not aware of any reason why the design should contravene regulatory requirements.

In this particular situation, the third party BRPD stated that the consultant acted as “Principal Designer” but had no design responsibility.

That statement, in my view, is astoundingly incompatible with the statutory role.

Conclusion

The amended Building Regulations provide a clear and coherent framework for responsibility and accountability. In the context of Design and Build procurement, they affirm – rather than disrupt – the principle of single‑point design and construction responsibility.

Attempts to dilute or outsource the BRPD role undermine both the spirit and the letter of the legislation. They also reintroduce the uncertainty and fragmentation that proved so catastrophic in the past.

If the industry genuinely wishes to learn the lessons of Grenfell, it must resist the temptation to seek administrative work arounds to what is, at heart, a question of competence and control. The statutory roles are not optional. They must be embraced wholeheartedly by the parties best placed to discharge them.

Our BRPD Support

calfordseaden is very aware of the impact that the BRPD role has had on Clients, architects, and D&B Contractors. We are well placed to support duty holders in delivering their statutory obligations and have created a suite of processes and procedures which can support the Client and BRPD in the administrative processes associated with the Client duties and the BRPD role, as well as technical design reviews – this is fundamentally different to taking on the client duties or BRPD role as a third party.

Please feel free to contact us to discuss how we might be able to support you.