In the 2023/2024 Annual Review,[1] we explored some initial themes coming out of the Building Safety Act 2022, identifying some of the potential challenges and how these can be managed. In this article, Ben Smith and Caitlin Binns consider how these themes have developed over the last twelve months and how you can address them in your construction contracts.
Applications and the Regulator
In the past year, we have seen how the Building Safety Regulator (the “Regulator”) has developed in its role as approver of building control applications for higher-risk buildings (“HRBs”).
Delay
Where a project involves the construction of a new HRB, or works to an existing HRB, that work will need to be approved by the Regulator before works can start on site, in a process known as Gateway 2 approval. On receipt of a valid application, the Regulator is required to approve that application within 12 weeks of receipt.[2] Approval from the Regulator is, in practice, taking much longer than anticipated by statute (approximately 50 weeks). This has led to reform of the Regulator to unlock these delays and to meet the government’s commitment to deliver 1.5 million safe, high-quality homes during this Parliament.[3]
Which party bears the risk for delays incurred by the Regulator in the approvals process is often a point for discussion. While clause 2.26.14 of JCT Design and Build Contract 2024 (“JCT DB 2024”) allows for an extension of time for delay in receipt of any necessary approval from a statutory body, owing to the JCT’s light-touch approach to building safety drafting within the JCT DB 2024, an express extension of time for delay caused by the Regulator is not included. Bespoke amendments passing this risk on to the contractor are therefore common.
Invalidity
According to figures released by the Regulator, around 44% of all applications received during the period between October 2023 and March 2025 were rejected on the grounds of invalidity. An application will be invalid where it does not include all the required documentation. In response to this, the Construction Leadership Council (the “CLC”) has released guidance, in conjunction with the Regulator, clarifying what it expects to see within a valid building control application.[4]
For many project teams, the recommendations from the CLC may serve as a checklist ahead of application submission, however, the pro forma documents included within this guidance may prove useful for complex projects, or those less familiar with the application process. Those involved in multi-building developments or staged applications should note that early engagement with the Regulator is now recommended. A document providing a summary of the overarching approach to the building control applications proposed for the project, along with timelines (referred to as the Application Strategy within the guidance), may be required in these early stages to ensure approval.
Dutyholders and Design and Build
Enquiries relating to the dutyholder regime for all building works created by the Building Regulations etc. (Amendment) (England) Regulations 2023 (the “Dutyholder Regulations”) have shifted away from clarifying what the new roles are, to establishing who is best placed and able to take on the duties. This has been particularly so for the role of building regulations principal designer (the “BRPD”) on design and build projects.
Where the design team has been novated to the main contractor, who has overall responsibility for the design of a project, the main contractor is likely to be best placed to carry out the role of BRPD, as it has overall control of the design of the works. However, to take on this role, the contractor must also have the relevant competencies required by the Dutyholder Regulations.
Further, where the BRPD is not an individual, it must have the organisational capability to fulfil the duties of BRPD under the Dutyholder Regulations.[5] The organisation taking on this role must also designate an individual from within the organisation who has the task of managing the organisation’s functions as the BRPD.[6] That individual is required to have the skills, knowledge, experience and behaviours necessary to manage the organisation so that it can fulfil its duties as BRPD under the Dutyholder Regulations.[7]
Main contractors considering appointing a sub-consultant to carry out the duties of the BRPD on their behalf should be aware that the Regulator has published guidance confirming that the designated individual must come from within the BRPD organisation itself and the legal responsibilities for the role of BRPD will remain with the organisation.[8] Therefore, while it is not possible to subcontract the statutory dutyholder obligations, it is possible to appoint a sub-consultant to advise and assist with the role of BRPD, and there is support from industry bodies for architects to take on this advisory role where their professional indemnity coverage allows for it.[9]
Allocating risk – other amendments in construction contracts
We continue to review bespoke amendments to standard form contracts that allocate the risk of the new regulatory regime in relation to building safety between the parties. Initially, BSA-specific drafting within contracts was prescriptive and not always project-specific, or even relevant – for example, deferring the risk for delay caused by building control approval onto the contractor where works were to a non-HRB. However, as understanding of the regulatory regime has developed, so too has the drafting around it.
Common themes include limitation and insurance periods. Contractual limitation is often amended to match the extended limitation periods under the Defective Premises Act 1972 and the Building Act 1984. Alongside this, the period of insurance is invariably amended to mirror the limitation period in the contract. While this is ultimately a commercial point to be agreed, parties need to consider whether they want or need to extend the contractual limitation period, when a separate statutory limitation period is available, and what period of insurance they can accept, given the yearly premiums.
Drafting may also be inserted to cover the client’s obligations under the regulatory regime for building safety. Often, clients will require a warranty from the contractor or designer that they possess the competency required by the regulations to carry out their role as a dutyholder, whether that be designer, contractor, principal designer or principal contractor. This often aligns with the liability that the contractor or designer takes on under statute. Therefore, it may be uncontroversial provided that the warranty is backed by the appropriate professional indemnity insurance policy.
Amendments driven by professional indemnity insurance policy requirements are also common. Insurers, who are now facing a significant number of potential claims relating to fire safety and cladding defects, often exclude such claims from their coverage. Accordingly, amendments may be requested to clauses setting out a contractor’s or consultant’s professional indemnity insurance obligation to clarify that fire safety and cladding defects claims are excluded from their coverage. This is often accompanied by an outright exclusion of the contractor’s or the consultant’s liability for fire safety and cladding claims.
Transitional arrangements – cancellation
We touched on what criteria needs to be met for the transitional arrangements in apply in our 2023/2024 Annual Review, one of which is the requirement for an initial notice to have been given and accepted by a local authority. But what happens where this notice is cancelled part way through the project as has happened previously with the insolvency of AIS, and the very recent demise of Assent?
The transitional arrangement set out within the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023 are clear cut when it comes to projects where the criteria are met – they fall under the previous regime. However, where the initial notice is cancelled and the project no longer falls within the transitional arrangements, the new regulatory regime applies subject to the amendments set out under the appropriate provisions of Schedule 3. This means that the project must transfer to the Regulator as the building control authority for higher-risk building projects.
Conclusion
Given that those in the industry are still getting to grips with the Building Safety Act 2022, the resulting challenges continue to develop – and so do construction contracts. Clearly, bespoke drafting can serve as a useful tool to reflect the commercial positions agreed on building safety issues, but it is always important to bear in mind the commercial relevance and risks before agreeing to bespoke amendments.
[1] Annual Review 2023/2024, “Higher-risk buildings regulations: surviving the new regime”
[2] Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, Regulations 3-7 (for work on new HRB) and Regulations 11-15 (for work to an existing HRB).
[3] https://www.gov.uk/government/news/reforms-to-building-safety-regulator-to-accelerate-housebuilding
[4] https://www.constructionleadershipcouncil.co.uk/wp-content/uploads/2025/07/CLC-Guidance-Suite-Building-Control-Approval-Application-for-a-New-Higher-Risk-Building-Gateway-2.pdf
[5] Building Regulations etc (Amendment) England Regulations 2023, Regulation 11G (1)(b)
[6] Building Regulations etc (Amendment) England Regulations 2023, Regulation 11G (2)
[7] Building Regulations etc (Amendment) England Regulations 2023, Regulation 11G (3)
[8] https://www.gov.uk/guidance/design-and-building-work-meeting-building-requirements#designers-duties
[9] RIBA Practice Note: Principal Designer Role (November 2024)
