A-RIBA! Royal Institute of British Architects releases first standard form appointment for new Building Regulations principal designer role

Introduced in October 2023, as part of a wider raft of building safety legislation in response to the Grenfell tragedy, Part 2A imposes new ‘dutyholder’ roles with the ultimate goal of ensuring that all those engaged on construction projects are suitably competent and coordinated for Building Regulations compliance purposes. 

One of the new dutyholder roles is the Building Regulations principal designer (BRPD). Defined as ‘a designer with control over the design work’, a BRPD must be appointed in all cases where more than one contractor will be working on the project. The BRPD is responsible, amongst other matters, for planning, managing, monitoring and coordinating the design work during the design phase, such that all reasonable steps are taken to ensure that the design when built complies with Building Regulations.

With the insurance market already a challenging landscape for construction design professionals in the wake of Grenfell, there has naturally been a degree of trepidation in the industry as to the likely availability of suitable insurance cover for the new BRPD role. That nervousness has doubtless been exacerbated by the lack of any industry-recognised standard form contract for appointing the BRPD, with consultants keen to ensure that bespoke BRPD appointment terms do not inadvertently expose them to uninsurable liabilities. Enter the Royal Institute of British Architects…

The RIBA BRPD appointment 

The Royal Institute of British Architects (RIBA) launched its BRPD professional services contract in the summer of this year, making it the first BRPD-specific form of contract on the market, and still the only one available at the time of writing. In what will undoubtedly be seen by consultants and insurers as a welcome addition to the RIBA contract family, it’s specifically designed for the BRPD role and includes a helpful, pro forma Schedule of Services setting out all statutory BRPD duties, including optional ‘bolt-on’ duties where the project relates to a Higher Risk Building. 

The opening terms of the RIBA standard form state: ‘This Agreement should be signed and executed on the same basis as the [BRPD’s] separate Architect / Consultant design services appointment’, indicating that RIBA envisages its standard appointment being used solely for the BRPD role, with any broader design duties of the appointed consultant covered under a separate contract. 

Whilst there is no legal prohibition on having a single appointment to cover both the BRPD role and more general design services, RIBA’s approach here will certainly help to simplify the novation arrangements on ‘design and build’ procurements, where there is a need to novate the general design services to the main contractor but with the BRPD appointment remaining ‘client side’. 

It should be noted that parties are still entirely free to agree an alternative, non-RIBA form of appointment for the BRPD role. With suitable amendments to ensure that all BRPD duties are covered, the JCT Consultancy Agreement, the NEC Professional Services Contract, or existing bespoke templates within a client’s precedent bank can all be fair starting points for a draft. However, with RIBA leading the way in delivering a BRPD-specific form of contract from a recognised industry publisher, we anticipate that there will be a strong appetite in the consultancy market to adopt this appointment as the base for many BRPD engagements.  

Client considerations

It is therefore important that clients in particular are alive to any potential shortcomings of the RIBA terms, so that suitable amendments can be made to safeguard their position and that of interested third parties such as project funders. Certain notable aspects of the standard terms which may require further consideration and drafting amendments on any given project include the following:

• There is arguably a level of disconnect between the new, and more potent, statutory liability of the BRPD under Part 2A of the Building Regulations and the risk allocation under the appointment terms. One example of this is at clause 2.1.5, which requires the client to ‘hold [the other project team members], and not the [BRPD], responsible for the proper carrying out and completion of [the former’s] work or services’. Whilst the spirit behind this drafting would have been perfectly reasonable against the pre-2023 landscape, now it seemingly cuts across the statutory BRPD duty to plan, manage and monitor the entirety of the project design. Such an approach could leave the client without a contractual remedy in circumstances where the project design is found to be non-compliant with Building Regulations and, whilst the issue primarily relates to the work of a third party designer, it is also partly attributable to poor oversight and coordination of the BRPD.
• Under clause 7.1 of the standard form appointment, the client is time-barred from bringing claims against the BRPD beyond six or 12 years, depending on the signature method, from the earlier of practical completion of the project or completion of the BRPD services. This is out of step with the recently extended liability periods for certain categories of claim under the Defective Premises Act 1972 and the Building Safety Act 2022.
• Unsurprisingly given the obvious and understandable interest that RIBA has in safeguarding its consultant members so far as possible, the terms include a number of more general, non-BRPD specific provisions which increase risk for the client and are likely to prove unpalatable to project funders. These include:
  1. An ability for the BRPD to revoke the client’s copyright licence in certain circumstances.
  2. The inclusion of a net contribution clause.
  3. An express exclusion of ordinary client rights of set-off.
  4. No rights for the client to assign the benefit of the appointment without the BRPD’s consent. 

Conclusions

With the introduction of its BRPD professional services contract, RIBA has taken a much needed first step for the industry in seeking to standardise and improve understanding of the BRPD role. Nevertheless, and as with any standard form document, there is never a ‘one size fits all’ solution for construction contracts and appointments. 

Whilst undoubtedly a welcome addition to the RIBA suite, from a client’s perspective in particular the BRPD professional services contract isn’t something that can be treated as an ‘off the shelf’ form of contract. Rather, it should be subject to careful and collaborative input from legal and technical experts on both sides, to ensure that the final risk profile is mutually acceptable to both parties, suitable for the project in question and accurately reflective of the new statutory regime governing building safety. 

If you require further information about the matters raised in this article, please contact the construction and infrastructure team.