Bite off what you can chew and keep chewing: Principal Designer under the BSA

In this article, Ellie Shepherd, Senior Adjuster at Zurich, and Alessandro Morgan-Gianni, Senior Associate at DAC Beachcroft, take a look at some of the key points around the appointment of a Principal Designer. We examine their main duties and what PD professionals should be taking extra care with when undertaking this role. Finally, we offer our views on how the market is responding to this risk.

What is a Principal Designer?

CDM Principal Designer

Prior to the BSA, the role of Principal Designer existed under the Construction (Design and Management) Regulations 2015 ('CDM Regulations'). That role still exists and remains an important professional appointment for a construction project, but it is a separate role. The CDM role remains centred around the management of the health and safety risks during the course of the building works, particularly during the pre-construction phase of a project.

The Building Regulations (“BR”) Principal Designer

The 'new' Principal Designer fulfils a different and much wider function: one that is concerned with ensuring compliance of construction designs with Building Regulations. Claims against construction professionals regularly involve issues relating to compliance with Building Regulations, which can be highly technical and involve fundamental issues of safety. The Building Regulations Principal Designer ("BR Principal Designer") therefore has a more extensive role, and carries a greater risk profile, than its forerunner under the CDM Regulations.

A BR Principal Designer must be appointed if there is (or is anticipated to be) more than one contractor on the project. Due to their pivotal position in construction projects, architects are often the professional considered most appropriate to undertake the role of BR Principal Designer (but engineers and surveyors can also undertake this role). There are nuances. Where a client does not appoint one, and there is only one designer on a construction project, that designer will become the BR Principal Designer by default. Where there are two, or more, designers in such circumstances, the regulations require a written agreement between the designers as to who is to be the BR Principal Designer.

The responsibility of a PD can fall to an organisation or an individual. As the CDM Principal Designer, you can also take on the role of the BR Principal Designer if you have the correct competencies for the scope of the role.

Main duties

For the role of BR Principal Designer, the regulations require the person or organisation undertaking it to be competent and capable. They must have the relevant behaviours and an understanding of the regulations and standards that need to be met.

There are elements of the role where the PD must ensure certain things, and there are parts where the PD must take all reasonable steps to comply with certain measures.

Musts:

• Holistically plan, manage and monitor the design work during the design phase of the project
• Coordinate matters relating to the design work comprised in the project so that all reasonable steps are taken to ensure that the design if built complies with Building Regulations

These are broad requirements, but as a “Must” it is important that the PD are recording the steps they are taking to ensure that these requirements are being met in the project.

Reasonable steps:

• Cooperation: All that are involved in the design work are cooperating with all stakeholders involved
• Design: Coordination of all design work undertaken by all designers involved in the project. It needs to be executed in a manner that allows building work to comply with the Building Regulations if every design in the project was followed
• Duties: Ensure all individuals involved in the design work comply with the duties under the duty holder regime
• Liaise: Liaise closely with the principal contractor, and ensure that clear communication is made, providing all information in relation to the stages of the project, and the compliance with building regulations. Onboard any comments on compliance from the Principal Contractor.

Higher standards

In relation to Higher-Risk buildings (“HRB”), BR Principal Designers have more onerous regulatory duties,

• The Golden Thread - The PD needs to ensure that they are managing the design and construction information, as a critical part of securing approval of the design and final construction from the Building Safety Regulator for a HRB
• Inspections - Ensuring an appropriate frequency of inspections of the HRB design work for safety occurrences throughout the construction phase

BR Principal Designers can face regulatory enforcement action by the Building Safety Regulator where they do not comply with their statutory obligations.

Practical impact and risk mitigation for construction professionals

A key takeaway is that the PD needs to have a good grasp of Building Regulations, and not just those that are relevant to any individual design element of the project for which they may be directly responsible. The PD must be willing to ask critical questions of other designers, be prepared to seek specialist input to help them consider the work of other designers, and co-ordinate meetings and reviews relating to key designs and those potentially being developed during the construction phase, in a leading capacity. In short, there is much for a PD to chew on.

As the construction industry knows well, the regulatory landscape is constantly moving, and it is vital that professionals understand the legal requirements when taking on the broader Building Regulations Principal Designer role. Before taking on the role, professionals need to have an appropriate understanding of the project as a whole, so as to identify potential challenges that may be faced in achieving design compliance with Building Regulations.

Professionals need to ensure that they are recording and collating their key documents and making contact and liaising with key stakeholders at regular intervals, as well as managing the employer’s requirements.

Be mindful that where the client does not make an appointment, a single designer can become BR Principal Designer by default. A structural engineer on a small residential project with no other designers involved, for example, could theoretically become responsible for the overall Building Regulations compliance of that project. If there are concerns with this, it may be prudent to check if the building contractor has responsibility any designs elements, and if they do, look to agree who is to be the BR Principal Designer.

Providing an underwriting lens on the day to day risks, Rheanne Dack, Head of PI, offered the following insights:

From an underwriting perspective, the shift from solely a health and safety lead CDM role to a Building Regulations compliance role represents a fundamental expansion of accountability and therefore risk. We are now seeing designers move into positions where they must not only influence design outcomes but actively ensure regulatory compliance across multiple disciplines. That is a significantly higher bar, and one that carries real potential for delay driven loss, cost escalation and regulatory enforcement.

For PI underwriters, the key challenge is understanding the true competency, capacity and organisational maturity of firms taking on the BR Principal Designer appointment and whether or not that extends to High Risk Buildings. The role assumes holistic oversight, strong coordination skills, rigorous documentation, and the confidence to challenge others in the design chain. When these skill sets aren’t present, exposure to claims arising from incomplete design information, missed compliance issues or late stage regulatory queries is much swifter than a traditional PI claim.

What we look for when underwriting a risk is clarity: clarity on who is taking responsibility, how that responsibility is discharged in practice, and whether the firm has the systems, training and resource to manage the role effectively. Where insureds demonstrate robust governance over their PD work, we are far more comfortable supporting them. However. where professionals fall into the role by default, or without full appreciation of the duties, we see a heightened underwriting concern.

The article rightly notes that this is a developing risk landscape. As regulators become more assertive and developers more sensitive to delay costs, we anticipate increased scrutiny on the BR Principal Designer particularly when dealing with High Risk Buildings and therefore the potential for a rising frequency of PI notifications. Our approach is to work collaboratively with customers to ensure they understand the implications of accepting this role and to shape insurance solutions that reflect both their exposure and their experience. Ultimately, good risk awareness, management and strong operational discipline remain the most effective mitigants for professionals taking on this expanding responsibility.

Lastly, the default appointment risk mentioned at the end of this article is often overlooked, a single designer can unintentionally become the BR Principal Designer, inheriting full Building Regulations accountability. From an underwriting perspective, that’s a significant exposure, clarity on roles is essential.

Conclusions

The new regulatory regime provides an additional framework of duties against which architects (and other customers) who undertake this new role will be measured. So, this is an altered risk landscape for insurers, with construction professionals potentially taking on a larger burden going forward in projects.

We are already seeing claims arising from BR Principal Designer appointments, including substantial claims by developers for increased costs where there has been delay in securing BSR approval because of insufficient design information. The new regulatory landscape could lead to a proliferation of claims against construction professionals undertaking the role. The scene is certainly set for this to occur.

Customers in the construction industry should be clear prior to taking on a project where their responsibilities lie and ensure that their Insurers are aware at policy inception that a BR Principal designer role could fall within the scope of their business. Insurers will always welcome Customers demonstrating their understanding of responsibilities when it comes to the BR Principal designer role, and their experience in this role.

We are always looking at how our clients can mitigate and protect their position, and understanding the Professional’s risk awareness and operational organisation is always something we look to be involved in. By working together at renewal, Insurers should be in a better position to support policyholders should any claims arise in the Policy year.