The new building regulations regime – and the Building Safety Act – brings with it different ways of working, new dutyholder roles and new duties in England, but how do these requirements extend to self-build and custom housebuilding?
Self- and custom-build projects are important sources of business for many architects and practices up and down the country driven by the National Planning Policy Framework in response to people seeking to commission or build their own homes. But is it the case that self-build and custom housebuilding projects fall outside of the regulations governing domestic clients and that designer and contractor duties are somehow different?
Section 1(A1) of the Self-build and Custom Housebuilding Act 2015 defines "self-build and custom housebuilding" as the building or completion of houses by individuals, associations of individuals, or persons working with or for them, to be occupied as homes by those individuals. To provide further differentiation:
- Self-build projects are where domestic clients will directly organise the design and construction of their homes via a design team and contractor– in a similar way to progressing any other project for a domestic property. Very few actually do the main construction work
- Custom-housebuilding will likely involve working with a builder, specialist developer or other party to deliver homes on serviced plots, and may have options or arrangements you can choose from (so perhaps not as free-reigning as self-build)
Should there be a separate approach to self- and custom-build projects?
RIBA Specialist practice advisor Mark Klimt says that the building regulations do not discriminate between self-build and custom-housebuilding projects under domestic clients and that the project will likely need to be set up with a Principal Designer and Principal Contractor in the usual way.
By their nature a self-build or custom-housebuilding project is built for the client’s own use and not for immediate resale (where the client may then become developer). A self-build or custom-housebuilding client is therefore a domestic client.
However, complications can arise if the self-build or custom-build client is intent on managing a project or deems the project as ‘DIY’ either because they will manage the project or because they are not intending for the project to be procured via a main contractor, but using their own connections for various packages. In this scenario Mark emphasises the importance of the architect highlighting the requirements under the regulations.
This includes the need for competence and - because the domestic client is not physically doing the work themselves - the parties they bring to become sub-contractors, which would potentially make client the Principal Contractor. Again they would need to be competent to meet those duties. The project will need a Principal Designer under the Building Safety Act, and the Architect will need to agree with the Client whether this is a role the Client wishes the Architect to fulfil. In the absence of a specific appointment, on domestic projects the Architect is likely to be deemed to have the Principal Designer responsibilities by default.
Read more about the Building Safety Act and the requirements for domestic clients
Is there a different approach needed for appointments?
Mark recommends that, where appointed, architects seek a separate appointment as Principal Designer, even if it is a hard sell to a domestic client.
“An architect doesn’t want to become the Principal Designer outside of their scope,” he says. “An architect wants the role to be something that they have arranged. In the absence of an appointment they may have Principal Designer responsibilities and be judged by the competency standards required of a Principal Designer for that project.
“There could be insurance implications if an appointment is not properly drawn up and the extent of their services is not clearly set out.”
Furthermore, at the outset of a project, a designer, whether they are appointed Principal Designer or not, should not start any design work until they are satisfied that the client understands their duties under the Building Safety Act.
The Principal Designer must take all reasonable steps to make sure that anyone involved in the design of the project co-operates, communicates and co-ordinates their work with the client, other designers and the Principal Contractor.
What happens when discussing responsibilities with domestic clients?
Mark suggests that in the case of self-build projects, there is an argument that initial discussions about responsibilities of dutyholders should be more robust.
“This is for the benefit of the client and also for the architect,” he says, “because under the building regulations (as is the focus here) an architect has to confirm that they are satisfied that a proper system, and a safe system, will be in place.”
In an extreme situation where it is clear that the self-build client is intent on managing a project themselves, but clearly does not have the competence to manage, the architect should be prepared to walk away, Mark suggests, and it would therefore be be advisable to include a discretionary termination provision in a self-build or custom-build appointment if there is any suspicion that the client might stop listening to your advice and start taking decisions for themselves that may compromise an architect fulfilling his or her duties.
“It’s important to explain what the limits of their designer (architect) and Principal Designer responsibility will be where the appointment is only extended to RIBA work stage 3 or 4,” he argues. “An architect must also advise the client at this point that someone else should be appointed as Principal Designer going forward."
“There can be a risk with any domestic project if the client does not do the right thing - the Principal Designer’s duties still apply by default unless the limits of involvement have been clearly established.”
He concludes: “An Architect appointed for the preliminary stages of a self- and custom-build project will not be able to control how the project progresses after its involvement has ceased. My view is that if the architect sets everything out for the client and explains what the client's obligations are, they can accept the job and take it through the early design stages, having taken the appropriate steps to satisfy itself that the project has been set up on a proper footing. As with many other issues and challenges on construction projects, clear communication and properly drafted appointment terms, showing both the extent and the limitations on the architect's duties and responsibilities, will be key."
Thanks to Mark Klimt, Partner, DWF Law LLP and Robert Goodlad, Director DWF Law LLP.
Text by Neal Morris. This is a professional feature edited by the RIBA Practice team. Send us your feedback and ideas.
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