The new building control regime: A new form of appointment for Registered Building Control Approvers

The construction industry is continuing to adapt to the changes within the building control regime introduced by the Building Safety Act 2022. This year has seen the release of two new industry standard forms designed for appointing individuals undertaking new roles under the updated regime – an appointment to engage a Registered Building Control Approver (RBCA) and a new Royal Institute of British Architects (RIBA) form of appointment for engaging an architect as the principal designer under the Building Regulations 2010.

In this first article, we consider the terms of the new RBCA appointment. Our second article will consider the RIBA form.

Registered Building Control Approvers

Under the building control regime that applied prior to 1 October 2023, the process of checking and certifying that construction work complied with building regulations could be carried out by privately appointed individuals or organisations known as Approved Inspectors (AIs) as an alternative to the relevant local authority. AIs had to be registered with the Construction Industry Council (CIC) and were often appointed by developers using the CIC's 'Contract for the Appointment of an Approved Inspector' (Third Edition 2020).

Commencing on 6 April 2024, AIs have been replaced by RBCAs. RBCAs can supervise non-higher-risk building work, whereas the Building Safety Regulator (BSR) has jurisdiction over higher-risk building work (i.e. works to buildings that are at least 18 metres in height or have at least 7 storeys and contain two or more residential units, or are care homes or hospitals). RBCAs are registered with the BSR and are subject to the BSR's oversight and a new code of conduct.

The ABCA Form

The Association of Consultant Approved Inspectors, the organisation which previously represented AIs, is now called the Association of Building Control Approvers (ABCA). Earlier this year, the ABCA recently published its 'Contract for the Appointment of a Building Control Approver' (First Edition 2024).[1] The ABCA form is an iterative development of the CIC form for the appointment of an AI and contains many of the same hallmarks.

The key features of the unamended ABCA form that developers should be aware of are set out below.

Cap on liability

The appointment contains an overall aggregate cap on liability which is limited to the greater of £250,000 or ten times the fee for claims other than 'Fire Safety Claims' (which have a separate limit). There are carve outs for negligence resulting in death or personal injury and liability for fraud. However, there are no carve outs for wilful default, breach of confidentiality or intellectual property infringement.

The RBCA's liability under the appointment in respect of Fire Safety Claims is limited to the amount the RBCA can recover for such claims under its professional indemnity insurance policy in force at the time the claim is notified. This was not included in the CIC form of appointment. Given this introduces a degree of uncertainty, developers may wish to expressly state an agreed amount as the cap for Fire Safety Claims.

The new ABCA form also contains a more definitive (and extensive) list of exclusions of liability – including, for example, loss of income and profit, loss of business, other consequential losses and damage to or corruption of data.

Net contribution

The RBCA's liability under the appointment is limited to the proportion of loss or damage that it would be just and equitable for the RBCA to pay having regard to the extent of its responsibility for the loss or damage (i.e. a net contribution clause). There is no concept of proportionate liability in English law, so this reverses the common law position which allows a party to recover all of its losses from any party at fault under contract (it is then up to such party to seek reimbursement by way of contribution from any other culpable parties).

Whilst such provisions are frequently seen in third party rights/collateral warranties, they are less commonly agreed in professional appointments prepared on bespoke terms (although they are seen in some industry body-published forms, such as the RIBA forms of appointment). RBCAs do not carry out any design themselves (as described further below) and so it remains to be seen how a tribunal would apportion fault and assess the amount of recoverable damages in the event of a claim against a RBCA.

Insurance

The RBCA is required to maintain professional indemnity and public liability insurance in such aggregate limits of indemnity "as is sufficient to cover its liability" under the contract. A developer would typically prefer to state agreed levels of cover.

Design responsibility

The new ABCA form makes it clear that the client is entirely responsible for the design of the project and that it is the responsibility of the client (and not the RBCA) to ensure compliance with Building Regulations. This is in line with regulation 3 of The Building (Registered Building Control Approvers etc.) (England) Regulations 2024 which provides that RBCAs should not have a professional interest in the work that they supervise, which includes being responsible for the design. The new code of conduct for RBCAs also states that an RBCA must not carry out work where there is a conflict of interest and they must maintain professional independence and impartiality.

Client obligations

There are numerous obligations on the client within the appointment – including an obligation to obtain and implement all consents, a requirement to give advance written notice to the RBCA of any inspections required (which puts the onus on the client to manage the process) and an obligation to provide drawings and specifications including site plans at a particular scale. The client is also required to check the 'Initial Notice' (effectively providing sign-off for the RBCA before its submission to the relevant local authority).

Fees

The circumstances which trigger payment for 'Additional Work' are largely the same as the CIC form, but, strangely, additional fees may also arise if the RBCA has to perform Additional Work due to Brexit. The fee for any Additional Work will accrue on a time charge basis at the RBCA's hourly rates.

Termination

The appointment may be terminated with immediate effect by the RBCA for numerous reasons (including client default, and where the RBCA is prevented or impeded from providing the services for certain events including force majeure or changes in law). The RBCA's termination rights are more extensive than those of the client. The client may only terminate where the RBCA is in material breach of its obligations under the appointment or insolvent.

Third party reliance

As was the case with the previous CIC form of appointment, the ABCA appointment does not provide for third party rights or collateral warranties in favour of third parties, so no party other than the client may have reliance on the RBCA's services.

Assignment

The appointment cannot be assigned by the client without consent from the RBCA, which can be withheld for any reason. This may cause difficulties in projects where assignment of the client's rights under consultant team appointments is anticipated.

Final certificate and Building Regulations

The appointment requires the RBCA to take reasonable steps to enable it to be satisfied that the works comply with the Building Regulations and, if satisfied, it will issue a final certificate. However, the final certificate is not a representation that every aspect of the works complies with Building Regulations.

Limitation period

No claims may be brought against the RBCA after the expiry of 6 years from the date of completion of the services or, if earlier, termination of the contract.

Conclusion

The ABCA form contains many of the same features as the CIC form. As an industry body's published form, it is unsurprisingly more favourable to the RBCA. Experience of appointing AIs on the CIC form indicates that RBCAs and their insurers will not accept many, if any, alterations to the printed form of appointment, whatever developers may think of it.

Look out for our next article, where we will consider the terms of the new RIBA Building Regulations Principal Designer Professional Services Contract 2024.