Who is to blame when something goes wrong?

Harwood - Insight 2 by Kevin Blunden

As the Government has published its response₁ to recent consultations on building safety and sets out a route map for the future, the time for clarity in terms of responsibility and accountability in the construction sector finally seems to be here.

Lines of responsibility have always been poorly defined, and although the CDM Regulations₂ defined roles and responsibilities, there have still been questions in terms of other legislation and the responsibility of regulators and enforcers.

In Building Regulation terms, the responsible people have always been “the person responsible for carrying out the work”. Without additional guidance this has remained unclear, who is carrying out the work? Is it the client who ultimately pays the bills, or is it the contractor who carries out the work? What about sub-contractors? And where does the design team and building control body fit into this list.

Responsibility in criminal law can open a builder up to prosecution and owners to being the subject of enforcement notices, but civil cases against all parties can be more difficult to defend and in many cases it may be the last man standing, when others have folded their tents and left, who bears the financial burden of a claim?

In a document published at the beginning of April₁ the Government made it very clear that responsibilities will be defined and assigned to key parties, from inception through design and construction to the management in use of a building, and although the initial intent is to apply this approach to buildings over 18m, the framework would easily apply to all projects.

Claims in court for building regulation contraventions have always been scarce with an enforcement by negotiation, and the withholding of final certificates often being cited as the tools utilised by Building Control bodies to enforce the Building Regulations. Indeed, there is very little case law, and although increased penalties have been introduced in recent years the financial implications of non-compliance are still not considered a reasonable deterrent.

It is clear that those involved in the design process will need to further demonstrate their competence to be involved, either through a tighter regime or through the increasing requirements of the insurers who are attempting to limit risk and exposure in terms of fire safety.

Those seen as regulators, the building control bodies charged with application and enforcement of the Building Regulations, have benefitted from a body of case law such as Murphy v Brentwood₃ more recently R(Gresty) v Knowsley₄ and Herons Court v NHBC5, that would seem to remove them from liability in respect of failures to comply with the regulations, and indeed the wording on certificates for completed works has for some while read that the certificate is “evidence, but not conclusive evidence” that the works meet the minimum standards set by the Building Regulations. Whilst this has not removed the obligation for building control to act with all reasonable professional care, it has led to a situation where only key risks are inspected.

The regime for building control bodies is set to change, with greater regulation for those practicing and clearer demonstration of competence, however perhaps the biggest challenge is how to carry out an effective assessment and inspection service, covering all potential areas where a building may fail, with an inspection regime based upon minimum standards and funded by fees, which when compared to other consultants involved in the process are insignificant, often being around 0.075%-0.1% of the contract value.

The Building Regulations set minimum standards for some aspects of the completed buildings performance, they do not cover everything that the client may desire, and they do not address the way in which the building is used.

In aiming for minimum standards, it is relatively easy to fail, with no margin of error. The performance of the building is based upon data provided to the design team by the client and variations in the buildings use, which may not need any further approval, can greatly affect the ultimate performance. On complex buildings and in respect to life safety issues the client and management must take the bulk of the responsibility for the building in use and any new regime for tall residential buildings will define responsibility clearly.

The elephant in the room, or on the building site, remains the builder. Whilst all other parties involved in the design and construction process will be required to demonstrate competence it would seem that it may well remain the case that anyone can become a builder with no previous knowledge and no appreciation of how the work they carry out can impact the end user. The vast majority of builders are experienced and knowledgeable and carry out excellent work, but there will always be an element who carry out the work and then disappear at the first sign of a claim.

Until this aspect is addressed, it may always be the professionals in the design team and ultimately the client who bear the responsibility when something goes wrong.

1. Government response to Building a safer future consultation https://www.gov.uk/government/news/government-confirms-the-biggest-changes-to-building-safety-in-a-generation
2. The Construction (Design and Management) Regulations 2015 https://www.legislation.gov.uk/uksi/2015/51/contents
3. Murphy v Brentwood District Council [1991] 1 AC 398
4. R (Gresty) v Knowsley MBC
5. Herons Court v NHBC Building Control Services Ltd

To see Insight 1 please visit Harwood