Part 3: Building Act 1984 Building control authorities and building regulations Section 39: Breach of building regulations Proposed use of power
As part of the new building safety regime dutyholders will be required to report certain matters taking place during design and construction, as part of a mandatory occurrence reporting regime. The power created by new section 35(2) to the Building Act 1984 is intended to be used in England to create two defences in relation to these duties in secondary legislation:
A defence to the offence of failure to report where the person being prosecuted was not aware of the occurrence which gave rise to the requirement to report, so long as that person had taken all reasonable steps to be made aware, in sufficient time, of the occurrence. This will place the onus on the Principal Contractor and Principal Designer to take steps to become aware of occurrences happening on site.
The obligation to report will lie on both the Principal Contractor and Principal Designer. In order to avoid duplicate reports of occurrences, it will be a defence to the offence of failure to report within the prescribed period where the person being prosecuted reasonably believed that the other dutyholder (i.e. where the Principal Contractor is being prosecuted, then the Principal Designer, and vice versa) had already reported the occurrence.