The new building safety regime

Consequently, most of the duties placed on designers and principal designers

(mainly Regulations. 11J, 11K and 11M in the Building Regulations (Amendment)

(England) Regulations 2023) now introduce a caveat which requires, amongst other

things, that:

Designers must:

Take all reasonable steps to ensure that, if built, the building work to which the

design relates would be in compliance with all relevant requirements [of the building

regulations]’

And principal designers must:

coordinate matters relating to the design work… so that all reasonable steps are

taken to ensure that the design is such that if the building work to which the design

relates were built in accordance with that design the building work would be in

compliance with all relevant requirements [of the building regulations];

The notable exception is the duty to co- operate which is still ‘strict’.

Whilst there is little that can be done to further mitigate the statutory duties, it will be

important for all firms to:

• Understand the new duties under the revised regulations.

• Stay up to date – as we have seen, duties and guidance may change.

• The roles are, to a degree, new, untested and will have a steep learning

curve. Adequate resources will need to be allocated to them.

• Watch out for contract terms that seek to impose a simple ‘strict’ liability –

they should go no further than the requirements in the regulations. When

(and if) the temporary ‘watering down’ of the regulations ends, ‘strict’

contractual duties should still be avoided.

We will continue to counsel that a strict liability model in isolation might not have the

results intended. Our consistent stance throughout this process of consultation is

that it may be superficially attractive to legislators to wield the stick of strict liability,

but in the context of the liability framework which currently exists for professionals,