JCT D&B 2024 - Building Safety

As part of our series on the recently published JCT Design and Build Contract 2024 Edition (JCT D&B 2024), this blog looks at the approach adopted in relation to the Building Safety Act (BSA) and the changes due to the ongoing implementation of secondary legislation, in respect of the building regulations (BRs).

One of the first observations when the new contract was published, was that the changes are quite “light touch”. The reason being, that the regulatory adjustments are designed to be practical and pragmatic rather than overly burdensome. 

In this segment, we’ll delve into how the new JCT has covered the BSA changes and their implications under the JCT D&B 2024.

The role of duty holders

JCT has introduced drafting adjustments to accommodate the new Part 2A of the BRs, which covers the “duty holder” regime for BRs.

The duty holder regime outlined in Part 2A of the BRs. However, it’s worth noting that the JCT D&B 2024 contract doesn’t explicitly detail all these responsibilities. Instead, it refers back to specific parts of the regulations that must be adhered to. We suspect the reason behind this approach is that it allows flexibility, while ensuring compliance with legal requirements.

Regulation 11A of the BRs

Clause 2.7.2 references Regulation 11A, which pertains to “building information.” Here, one of the Employer’s (described as the client in the relevant BRs) duties is to provide relevant building information to ensure the Contractor has access to essential data. The JCT contract doesn’t specify the exact type of building information, however there is further reference to it in the BRs, defined in Regulation 11Q to mean information in the Employer’s possession or which is reasonably obtainable by or on behalf of the Employer, relevant to the building work or the design work, including information about the work, planning and management of the project and  issues relating to compliance with any relevant requirement and how they were addressed.

Absence of an express limitation clause

Similar to its predecessor, the JCT D&B 2024 does not explicitly include a limitation clause. This absence means that parties must rely on statutory provisions and common law principles to determine the applicable limitation period for claims arising from construction projects.

The Building Safety Act has introduced, by way of the Defective Premises Act 1972 (DPA), a significant change regarding limitation periods in respect of ‘dwellings’. Specifically, going forwards, for new builds, claims under the DPA now have an extended limitation period of 15 years. This means that affected parties have a longer timeframe within which to bring such claims.

Clause 2.17.2 in the JCT D&B 2024 addresses this matter. It clarifies that if the works involve taking on work for or in connection with a dwelling, the Contractor’s design liability extends to liability under the DPA. In other words, the Contractor must be aware of this extended limitation period and take it into account when assessing their responsibilities.

Competency

Competency is another point where the contract is silent. It does not explicitly address requirements related to competencies.

A recap on some key principles regarding competencies:

1. Dutyholder regime and competence - Under the new dutyholder regime, anyone involved in design or building work must be competent. This means having the necessary skills, knowledge, skills, experience and behaviours to perform their roles effectively. Demonstrating competence ensures that work aligns with BRs and safety standards.
2. Competency requirements - The specific competency requirements are outlined in Part 2A of the BRs. These regulations set the standard for competence across various roles within the construction process.
3. Appointing competent entities - Employers and anyone else responsible for appointing entities to carry out design or building work must take reasonable steps to ensure that the appointed parties meet the competence requirements. This includes compliance with regulations 11F (general) to G (principal designers) and 1H (principal contractors of the BRs.

Higher-Risk Buildings (HRB)b

The JCT D&B 2024 does not include specific drafting related to Higher-Risk Buildings (HRBs), a concept introduced by the Building Safety Act, which effectively means during the construction phase of a building, any building over 18 metres or 7 storeys in height with 2 or more residential units, and hospitals and care homes that meet the height requirement. There are no provisions explicitly dealing with the requirements of HRBs such as the ‘gateways’ (ie the application to the Building Safety Regulator (Regulator) for building control approval (gateway 2) and the requirement to apply to the Regulator for a completion certificate (gateway 3)) or the keeping of the Golden Thread for example.

Parties involved in a project that is an HRB should seek legal advice on how to properly address this in the contract. Parties can also consult the JCT website for guidance, which provides information on handling HRBs, ensuring compliance, and understanding the necessary processes.

Navigating gaps and consideration when using the JCT D&B 2024

As mentioned, the contract refers to the relevant parts of the BRs that need to be complied with. However, this reliance on external regulations means that there may be gaps in specific requirements. To mitigate this, parties should pay more attention to the Schedule of Amendments or supporting / technical documents forming part of the contract, to cover off the relevant HRB requirements.

For instance, consider incorporating express clauses in the contract that address the relevant obligations under the BRs (i.e. BR 11A etc). This will help to ensure clarity and accountability regarding building information and compliance. The Employer’s Requirements can also play a role in specifying the necessary building information that the Contractor must receive.

Be aware of the extended limitation periods. This can be explicitly covered in the Schedule of Amendments to address the lack of limitation periods.

In addressing the competence requirements in the contract, an Employer’s options include the following:

1. adding to or amending the contract - add specific clauses that covers competence requirements;
2. create an Appendix / Schedule - outline roles and responsibilities related to competence in a separate section within the contract; and
3. to ensure that the competence requirements are adequate and clearly documented for HRB projects:
   1. implement a HRB competence framework that covers:
      1. more robust requirements for key roles such as the Principal Designer and Principal Contractor to ensure they meet the required higher standards;
      2. a requirement for third-party accreditation or certification of entities involved on HRB projects;
      3. periodic assessments or continuous development programmes; and
      4. requirements to maintain detailed records relating to training, certifications and competence assessments.    

HRB drafting should be carefully considered. Proper legal advice can ensure that the correct provisions are covered in the contract. Parties should consider the inclusion of clauses that mandate compliance with BRs and approvals from the building safety regulator. This can be achieved by referencing specific regulatory requirements and incorporating a schedule for regular compliance checks and updates.

Other important considerations include addressing mandatory reporting requirements and the integration of “golden thread” information within the contract. Include provisions that require the contractor to update and maintain this information throughout the project lifecycle, ensuring transparency and accountability.

Final takeaway

The regulation changes are currently still evolving, and we suspect will continue to do so for the next months or years to come. Parties must navigate the regulatory landscape and exercise diligence in understanding the respective roles. Collaboration, clear communication, well-drafted clauses and alignment with regulatory standards contribute to successful outcomes, and by understanding the responsibilities and the impact of contract changes, we can collectively contribute to safer buildings and better outcomes for all.