oct ewj 24 online - Flipbook - Page 91
ABCA’s New Appointment for Registered
Building Control Approvers - Changes
following the Building Safety Act 2022
by Jake Wright, Associate - Stevens & Bolton LLP
Introduction
Prior to the Building Safety Act 2022, those undertaking a construction project had the choice of either
engaging the local authority or an approved inspector
to certify whether the works undertaken complied
with building regulations. In either case the discipline
usually sought was that of a building surveyor.
Building Approved Inspections (‘ACAI’)) has issued
new forms of appointment for use by their members
for works that are not High-Risk Buildings. These
contracts include:4
Following the coming into force of the Building Safety
Act 2022, and the creation of the new Building Safety
Regulator (a division within the Health & Safety Executive) (‘Regulator’), the role of certification has been
split. Under the new regulations1 the Regulator takes
direct responsibility for higher-risk buildings, with
non-higher-risk building certification only being restricted to someone who the Regulator has recognised
as being a Registered Building Control Approver
(‘Approver’).
(2) the “ABCA Short Form Contract for the Appointment of a Building Control Approver First Edition”
which is intended for projects under £500,000.
(1) the “ABCA Contract for the Appointment of a
Building Control Approver First Edition” (‘ABCA
Appointment’); and
These documents are intended to replace the
Construction Industry Council’s (‘CIC’) forms that
previously were among the most popular industrystandard contracts for Approved Inspectors. These
new documents are indicative of the potential future
direction for such appointments, and we consider the
key changes below.
Due to the Regulator not having the resources on its
creation to perform its function by itself (and it remains to be seen if it ever will), a system was set up for
those construction projects already substantially underway prior to 6 April 2024. The transitional provisions allowed those who had previously been appointed
as approved inspectors under the old regime to contact the Regulator and register to become an Approver.
Overall, this has preserved some of the previous arrangements where developers could engage surveyors
under private contracts to perform a role that otherwise would fall to the regulatory authority.2
CIC vs ABCA – What has remained and what has
changed?
1. New Structure and Definitions
The ABCA update includes a tabularised “Contract
Details” page to make it easier to capture project specific data. The “Definitions” section has also been
moved to the front of the document and reworked to
make it clearer to the reader (who previously might
not have made it to the end of the contract).
As to the definitions and language of the Contract, unsurprisingly all non-obsolete CIC definitions remain
and those that do not align with the new legislation
and regulations have been removed i.e., “Approved
Inspector”. As for new definitions, these reflect the
new legislation and duties imposed by the Building
Safety Act 2022. ABCA has also (and in our view
smartly) modernised their appointment by capturing
other changes in law (i.e. concerning delay events),
generic “Force Majeure” events (such as epidemics)
and “Relevant Event”, which emulates the JCT
approach.
Unsurprisingly given the plethora of regulations,
definitions etc., introduced under the Building Safety
Act 2022, the construction industry is still coming to
grips with how to best set up and run their projects.
Earlier this year the Regulator announced that at least
50 ‘higher risk’ schemes would need to pause works
due to issues with the status of the building control
surveyors who had been privately appointed as approved inspectors.3 Clearly, navigating the new requirements of the building control regime for both
higher-risk buildings and non-higher-risk buildings is
an important aspect for project stakeholders, requiring careful consideration to keep a project on course.
One of the immediate practical consequences of the
change from ‘Approved Inspectors’ to ‘Registered
Building Control Approvers’ is that the standard
forms of appointment that were previously being used
were all in need of an update.
2. Conditions
The duty of care owed by the Approver remains that
of “reasonable skill, care and diligence” but now expressly
excludes fitness for purpose. This amendment follows
market trends and the stance of insurers following the
Supreme Court’s judgment in MT Hojgaard A/S v
E.On Climate & Renewables UK Robin Rigg East Ltd and
another.5
New ABCA Contracts for the Appointment of a
Building Control Approver
In response, the Association of Building Control
Approvers (ABCA) (formerly the Association of
EXPERT WITNESS JOURNAL
The original CIC position is otherwise adopted save
for the new provisions dealing with the requirements
of “dutyholders” under the Building Safety Act 2022.
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