Additional building safety issues should be considered when adopting JCT D&B contract 2024

The updated contract now includes provisions related to the ‘dutyholder’ regime that has been introduced by Part 2A of 2010 Building Regulations and applies to all building work in England and Wales. The building regulations now require the client to appoint a principal contractor and/or principal designer, and to meet specified competence requirements. All parties – clients, contractors, and designers – face statutory duties to take steps to ensure that buildings comply with the functional requirements of the building regulations.

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The JCT 2024 contract contains a new article 7 and an expanded clause 3.16. The new article, which is similar to article 6 dealing with the Construction (Design and Management) Regulations 2015 (CDM Regulations), now requires the parties to set out who the principal designer and principal contractor is for the purposes of the Building Regulations. The expanded clause 3.16 requires each party to comply with their respective obligations under the CDM Regulations and the Building Regulations.

Many in the industry had expected provisions dealing specifically with the 2022 Building Safety Act to be included but this has not been done, according to real estate construction specialist Kofi Atta of Pinsent Masons.

“Whilst the changes incorporating the Building Regulations are welcomed, the parties will need to consider all other elements bought in force by the Building Safety Act and in particular, how will practical completion be dealt with by the parties in respect of Gateway 3,” he said.

For example, JCT 2024 does not include any specific provisions addressing works carried out to ‘higher-risk buildings’. Atta said that employers and contractors should consider if they need to address issues in their contracts such as the ‘golden thread’ requirements – the creation and maintenance of the chain of the building information and the electronic platform to be used – as well as in what situations the contractor will bear the risk of major changes and notifiable changes.

Compliance notices and the relationship between ‘gateway 3’ and practical completion are two other areas in which to pay particular attention, Atta said. Parties should consider if the contractual provisions match their intentions around the process of completion and achieving sign off from the Building Safety Regulator.

Atta added: “Building safety will continue to be a focus area for parties using the JCT 2024 contract and we will not be surprised to see parties wanting to amend the contract further than JCT has chosen to.”