The building regulations amendments demand honest, confident discussion with clients on fees and resources. Here one practice explains how and why it is revising its fees
The construction industry faces a rise in costs of £385.5 million over the next 15 years as a result of changes to the building control regime in England for higher risk buildings (HRBs). This is the conclusion of an economic impact statement published by the government as part of its consultation response to the amendments to the building regulations, enacted under the Building Safety Act 2022.
This assessment reflects a belief that, over recent years, clients have been procuring buildings too quickly and too cheaply, which has resulted in more poor quality and unsafe buildings throughout the UK. The amendments to the procedural requirements of the building regulations 2010 introduced in October 2023 are intended to drive cross-industry behaviour changes that reverse this approach.
Under the new building regulations Part 2A ‘Dutyholders and competence requirements’, which apply to all projects designed and built in England subject to Building Control approval, clients (or their principal contractor if it is a domestic client) have a statutory duty to ensure that the designers and contractors they employ have sufficient time and resources to ensure that their work complies with all the relevant requirements of the building regulations, or the applicable requirements in the case of HRB work (see panel).
Designers are prohibited, under the amended building regulations, from undertaking any design work unless they are satisfied that their client understands their client duties. This includes a duty to ensure the project team has sufficient time and resources to discharge their own duties under the regulations, which in turn means designers must be competent and ensure that they have the resources to comply with the regulations. This requires designers to have the behavioural competence and confidence to engage in honest discussions with their clients regarding fees and resources. This is particularly pertinent for clients that have a track record of under-resourcing projects, which could jeopardise or undermine compliance with the relevant requirements of the building regulations.
Where are the impacts?
How much more time and resource will be needed to deliver architectural services under the new regime will depend on the scope and detail of a designer’s existing service agreements. If a designer is already providing full design and construction stage services – including lead designer services but not principal designer services – for a project that does not include HRB work, it is unlikely that the procedural changes will have a significant impact on services and fees. For projects that do not include HRB work, including those for domestic clients, the new building control procedures are similar to the existing regime in terms of approval, application, content and programme. The government’s economic impact assessment has concluded that there will be no financial impact on the industry relating to these changes.
Likewise, designers offering limited design or professional services that do not include services in connection with building control approval applications, construction stage services or lead designer services, should see little, if any, impact on fees and resources.
However, for designers working on projects involving HRB work, and/or intending to provide building regulations principal designer services for the same, the impact on fees and resources could be significant. How significant would depend on the nature and complexity of the project, the procurement route and the client and project team’s awareness, understanding and experience of the new regime. There will be a significant impact on project programmes and design and construction team resources owing to additional information management requirements; these include the gateway building control approval application documentation and golden thread information obligations, combined with the programme implications of ‘hard stops’ to construction related to gateway applications and approval of major controlled changes.
Some but not all these impacts can be assessed and quantified at the outset of a project – for example, details of the project brief and/or designer and principal designer services that depend on aspects of the project that cannot be determined before the contractor supply chain is engaged, or before the start of construction. This is particularly true for projects involving HRB work to existing buildings, where it may not be possible to complete the design work required to demonstrate compliance with the applicable requirements of the building regulations at Gateway 2 before construction starts on site.
We are identifying designers that we consider competent to provide the relevant services
Working with the client
At EPR Architects we are discussing the implications of the changes on our project resources and fees with all our clients, in particular those involving HRB work and/or where the client wishes us to undertake the building regulations principal designer duties. To do this we are identifying designers that we consider competent to provide the relevant services, and preparing resource plans based on the additional time we would expect them to spend discharging their duties. This includes an exercise to assess the new or additional services that we can quantify in terms of time and resources, which are suitable for agreeing on a lump sum fee basis, and those that will depend on client instruction and/or project variables – which we are unable to quantify with any precision, and which therefore lend themselves to a variable fee rate. Examples of the former include an assessment of the additional reporting and design team co-ordination meetings we expect to provide. An example of the latter includes the time required to liaise with a principal contractor regarding design changes relating to applications for major controlled changes.
To ensure consistency and transparency, we are breaking down our fee proposals to separately identify the resources allocated to our designer and principal designer services. This also allows us to track and evidence our allocation of resources for the respective roles throughout each project. Not only will this give us data for future planning, it will also provide documentary evidence in case it is required in the event of sanctions being imposed by the relevant building control authority.
To contribute to building industry consensus, we are sharing details of EPR Architects’ schedules and approach to resource planning with clients and colleagues to illustrate what impact we think the changes and their potential programme implications will have, particularly for those aspects of our services where we cannot precisely determine the implications for our fee. We expect to refine this process over time as, along with the rest of the profession and industry, we gain more experience of delivering projects under the new regime. We aim to convert a greater proportion of our fee proposals into lump sum fees in the future, to provide our clients with greater certainty and confidence that they are discharging their duty to sufficiently resource the project, but this will take time as we all get to grips with the new building regulation procedures.
Dieter Bentley-Gockmann is director, legal and technical services at EPR Architects and author of the RIBA Health and Safety Guide and RIBA Principal Designer’s Guide
For more on the implications of the Building Safety Act and Building Regulations amendments see Dieter Bentley-Gockmann on rebalancing programme and procurement and Paul Jolly on Navigating the position of Principal Designer
DEFINITIONS OF REQUIREMENTS
Relevant requirements means to the extent relevant to the design work in question, the requirements of building regulations 4, 6, 7, 8, 22, 23, 25B, 26, 26A, 28, 36, 41(2)(a), 42(2)(a), 44A, 44ZA, 44ZC and 44D to 44I, and the functional requirements A to S listed in Schedule 1 of the building regulations 2010.
Applicable requirements means the relevant requirements of the building regulations 2010 and the requirements of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 that are applicable to the project.