Terms and Conditions of Engagement
These Terms and Conditions of Engagement (“Terms and Conditions”) apply to the provision of building control services by Dainty Proudlove Building Control Ltd and form part of the Contract between the Company and the Client.
The Client should read these Terms and Conditions carefully before accepting a Quotation or submitting an Application Form.
1. Definitions and Interpretation
1.1 Definitions
In these Terms and Conditions, unless the context otherwise requires, the following words and expressions shall have the following meanings:
Additional Services means any services additional to, or arising from a variation to, the Services originally included within the Company's Quotation or appointment.
Agent means any person or organisation authorised by the Client to act on the Client's behalf in connection with the Project.
Application Form means the application submitted to the Company by or on behalf of the Client requesting the provision of the Services.
Building Act means the Building Act 1984, as amended from time to time.
Building Regulations means the Building Regulations 2010, together with all applicable regulations made under the Building Act and Building Safety Act and, in each case, as amended, consolidated or replaced from time to time.
Building Safety Act means the Building Safety Act 2022, as amended from time to time.
BSR means the Building Safety Regulator.
Client means the person, persons, company or other legal entity identified as the client in the Application Form, Quotation or other appointment documentation and who appoints the Company to provide the Services.
Company means Dainty Proudlove Building Control Ltd acting, where applicable, in its capacity as a Registered Building Control Approver.
Consumer means an individual acting for purposes wholly or mainly outside that individual's trade, business, craft or profession.
Contract means the agreement between the Company and the Client comprising the Quotation, Application Form, these Terms and Conditions and any other documents expressly incorporated into the appointment.
Duty Holder means any person having duties under the Building Regulations or Building Safety Act in connection with the Project, including the Client, Principal Designer and Principal Contractor where applicable.
Fee means the amount payable to the Company for the Services as specified in the Quotation, together with any Additional Fees properly payable under the Contract.
Final Certificate means a final certificate issued pursuant to section 51 of the Building Act and applicable regulations.
Higher-Risk Building or HRB shall have the meaning prescribed by applicable legislation from time to time.
Initial Notice means an initial notice submitted pursuant to section 47 of the Building Act.
Professional Team means any architect, designer, engineer, consultant, contractor, subcontractor or other person appointed by or on behalf of the Client in connection with the Project.
Project means the building work described in the Quotation and/or Application Form.
Quotation means the Company's written quotation or fee proposal for the provision of the Services.
Registered Building Inspector or RBI means a person registered as a building inspector in accordance with applicable legislation.
Services means the building control services described in the Quotation, Application Form and these Terms and Conditions.
Statutory Functions means the functions and duties imposed upon the Company in its capacity as a Registered Building Control Approver by the Building Act, Building Safety Act, Building Regulations and any other applicable legislation.
Works means the building work forming the subject of the Project.
1.2 Interpretation
Unless the context otherwise requires:
a. words in the singular shall include the plural and vice versa;
b. references to a person shall include an individual, company, partnership, body corporate or other legal entity;
c. the words “including”, “include” and similar expressions shall be construed without limitation;
d. references to legislation shall include any amendment, extension, consolidation or replacement of that legislation and any regulations or secondary legislation made pursuant to it; and
e. headings are for convenience only and shall not affect the interpretation of the Contract.
2. Formation of the Contract
2.1 These Terms and Conditions shall apply to all Services provided by the Company unless expressly varied by agreement in writing.
2.2 The Contract shall be formed when the Client accepts the Company's Quotation, submits an Application Form accepting these Terms and Conditions, instructs the Company to commence the Services or otherwise confirms acceptance of the Company's appointment.
2.3 By entering into the Contract, the Client confirms that it has read, understood and accepted these Terms and Conditions.
2.4 In the event of any inconsistency between the documents forming the Contract, any project-specific provisions expressly stated within the Quotation shall take precedence over these Terms and Conditions.
3. The Company's Appointment and General Obligations
3.1 The Company shall perform the Services using the reasonable skill, care and diligence to be expected of a competent Registered Building Control Approver providing services of the nature and scope of the Services.
3.2 In carrying out the Services, the Company shall have due regard to the legislation, regulatory requirements, Operational Standards Rules, Professional Conduct Rules and other requirements applicable to Registered Building Control Approvers.
3.3 Notwithstanding any other provision of the Contract, the Company's obligation shall be limited to exercising reasonable skill, care and diligence in the performance of the Services.
Nothing in the Contract shall impose upon the Company any fitness-for-purpose obligation, warranty or guarantee in respect of the Project, the Works or compliance with the Building Regulations.
3.4 The Company shall exercise its Statutory Functions independently and nothing within the Contract shall require the Company to act in a manner inconsistent with its statutory, professional or regulatory obligations.
3.5 Where any conflict arises between the terms of the Contract and the Company's Statutory Functions, the Company's Statutory Functions shall take precedence.
4. Scope of Services
4.1 Subject to the particular requirements of the Project and the scope of the Company's appointment, the Services may include:
a. receiving and reviewing information relating to the Project;
b. advising on applicable building control procedures;
c. preparing and submitting an Initial Notice to the relevant Local Authority where appropriate;
d. assessing plans, drawings, specifications, calculations and other information for building control purposes;
e. communicating observed contraventions or matters requiring further information;
f. undertaking statutory consultations where required;
g. determining an appropriate inspection and intervention approach;
h. carrying out appropriate site inspections during construction;
i. maintaining appropriate records of assessments and inspections;
j. reviewing certificates, test results, declarations and other information provided in connection with completion; and
k. determining whether the statutory requirements for issuing a Final Certificate have been satisfied.
4.2 The precise nature, extent, frequency and timing of the Company's activities shall be determined by the Company having regard to the nature, complexity and risk of the Project and the Company's Statutory Functions.
4.3 Unless expressly agreed otherwise in writing, the Services do not include architectural design, structural engineering, fire engineering, energy assessment, planning consultancy, project management, contract administration, clerk of works services, site supervision or quality control of the Works.
5. Scope of Registration and Competence
5.1 The Company shall only undertake work falling within the scope of its registration as a Registered Building Control Approver and for which appropriately registered and competent personnel are available.
5.2 The Company reserves the right to decline, suspend or terminate its appointment where it determines that the nature, scope, complexity or risk of the Project falls outside the Company's registration, competence, available resources or regulatory permissions.
5.3 The Company does not undertake Higher-Risk Building work.
Where the Project constitutes, becomes or is subsequently identified as involving Higher-Risk Building work, the Company shall be entitled to cease providing the Services and take such steps as are necessary to comply with applicable legislation and its regulatory obligations.
6. Client and Duty Holder Obligations
6.1 The Client shall comply with all duties imposed upon it by applicable building control legislation.
6.2 The Client shall ensure that all Duty Holders required for the Project are properly identified and appointed and shall take reasonable steps to satisfy itself that those persons are competent to perform the work for which they are appointed.
6.3 The Client shall provide, or procure the provision of, all information, drawings, calculations, specifications, certificates, declarations, notices, approvals and assistance reasonably required by the Company to perform the Services and discharge its Statutory Functions.
6.4 All information supplied to the Company shall, so far as reasonably practicable, be accurate, complete and provided in sufficient time to enable the Company to properly perform the Services.
6.5 The Client shall promptly notify the Company of:
a. any material alteration to the design or scope of the Works;
b. any change in the intended use of the building;
c. any material change to the construction method or programme;
d. any change to the Client, Principal Designer or Principal Contractor;
e. any material change in the value, nature or complexity of the Project; and
f. any other matter which may reasonably affect the Company's performance of the Services or Statutory Functions.
6.6 The Client shall ensure that the Company is provided with safe and reasonable access to the Project whenever such access is reasonably required for the performance of the Services.
7. Design and Construction Responsibility
7.1 The Client and relevant members of the Professional Team shall remain responsible for the design, construction and management of the Project and for ensuring that the Works comply with applicable legislation.
7.2 The Company is not a member of the design team and does not accept responsibility for the design of the Project.
7.3 Any comment, observation or communication made by the Company in relation to a design or proposed construction detail is made solely in connection with the Company's building control functions and shall not constitute design advice.
7.4 The Client shall ensure that appropriate competent designers, engineers and other specialists are appointed where required.
8. Compliance with the Building Regulations
8.1 Responsibility for ensuring that the Works comply with the Building Regulations rests with the persons carrying out, commissioning, designing and constructing the Works and with the relevant Duty Holders.
8.2 The provision of the Services does not transfer responsibility for compliance with the Building Regulations to the Company.
8.3 The Company shall take such steps as it considers reasonable and appropriate in performing its Statutory Functions.
8.4 No assessment, inspection, comment, correspondence, absence of comment or other act of the Company shall constitute a warranty or guarantee that the Works or any part thereof comply with the Building Regulations.
9. Reliance on Information Provided by Others
9.1 The Company shall be entitled to rely upon drawings, calculations, reports, specifications, certificates, declarations and other information provided by or on behalf of the Client or prepared by members of the Professional Team.
9.2 The Company shall not be responsible for the accuracy or completeness of information prepared by others, save to the extent that an error or omission ought reasonably to have been identified by the Company in the proper performance of the Services.
9.3 Where the Company reasonably requires information to be prepared or certified by an appropriately qualified or competent person, the Client shall procure such information at its own cost.
10. Planning Permission and Other Consents
10.1 The Company's appointment relates to Building Regulations and building control matters only.
10.2 Unless expressly agreed otherwise in writing, the Company shall have no responsibility for obtaining or advising upon planning permission, listed building consent, Party Wall matters, restrictive covenants, highways approvals, environmental permits, licensing or any other statutory or private consent.
10.3 The Client shall be responsible for identifying, obtaining and complying with all other approvals, permissions and consents necessary for the Project.
11. Initial Notice
11.1 Where appropriate, the Company shall prepare and submit an Initial Notice to the relevant Local Authority following its appointment and receipt of sufficient information.
11.2 The submission or acceptance of an Initial Notice shall not constitute approval of the design or confirmation that the proposed Works comply with the Building Regulations.
11.3 The Client shall ensure that the Works do not commence until all applicable statutory requirements and notification periods have been satisfied.
11.4 The Client and relevant Duty Holders shall provide all notices, information and declarations required in relation to the start and commencement of the Works.
12. Commencement and Lapse of Building Control Approval
12.1 The Client shall keep the Company properly informed of the intended start date, commencement and subsequent progress of the Works.
12.2 The Client shall be responsible for ensuring that the Project reaches the statutory definition of commencement within any period prescribed by applicable legislation.
12.3 Where the statutory requirements for commencement are not satisfied and the Initial Notice or building control approval ceases to have effect, the Company shall have no liability for such lapse.
12.4 Any subsequent appointment or additional work required as a consequence of such lapse may be subject to an Additional Fee.
13. Site Inspections
13.1 The Client shall ensure that the Company is provided with not less than 48 hours' notice of any inspection request, unless otherwise agreed by the Company.
13.2 The number, frequency, timing and nature of inspections shall be determined by the Company having regard to the nature and risk of the Works, their stage of construction, previous findings and the Company's Statutory Functions.
13.3 Site inspections shall comprise reasonable sampling and observation of accessible work at the time of the inspection and shall not constitute continuous supervision or comprehensive inspection of every element of the Works.
13.4 The Company's inspections shall not relieve the Client, contractor, Principal Contractor, designers or other Duty Holders of their respective responsibilities.
13.5 The Client shall ensure that relevant work remains reasonably accessible for inspection and that safe access is provided.
13.6 Concealed Work - Where work is covered, concealed or otherwise made inaccessible before the Company has had a reasonable opportunity to inspect it, the Company may require such evidence as it considers appropriate, including photographs, records, testing, certification or opening-up of the Works. The Company shall not be obliged to accept concealed work where it is unable to obtain sufficient evidence to satisfy its Statutory Functions.
13.7 Any additional attendance, assessment, opening-up or other work arising frompremature covering-up, abortive inspections, repeated non-compliance or other circumstances outside the scope reasonably anticipated at the date of the Quotation may constitute Additional Services.
14. Changes to the Project and Additional Services
14.1 The Company shall be entitled to review the Services, programme and Fee where Additional Services become necessary as a result of:
a. changes to the design, size, scope, value, use or complexity of the Project;
b. changes to the timing or programme of the Works;
c. delay, disruption or prolongation;
d. failure by the Client or any Duty Holder to comply with their obligations;
e. additional or repeated assessments, inspections, meetings or consultations;
f. substantial revisions to information previously assessed;
g. repeated or significant non-compliance;
h. incomplete, inaccurate or late information;
i. changes to legislation or regulatory requirements; or
j. any other matter beyond the reasonable control of the Company which materially increases the work required.
14.2 Where reasonably practicable, the Company shall notify the Client where it considers that material Additional Services will be required.
14.3 The Client shall pay a fair and reasonable Additional Fee for Additional Services based upon the nature and extent of the additional work undertaken.
15. Fees and Payment
15.1 The Client shall pay the Fee specified within the Quotation together with VAT at the applicable rate and any properly incurred Additional Fees, expenses or disbursements.
15.2 Invoices shall become due for payment in accordance with the payment terms stated on the Company's Quotation or invoice.
15.3 The Client shall not withhold payment by reason of any dispute with a contractor, consultant or other third party.
15.4 Where sums properly due remain unpaid, the Company may, subject to applicable legislation and its Statutory Functions, suspend the provision of Services following reasonable written notice to the Client.
15.5 The Company reserves all rights available to it under applicable legislation in relation to late payment and recovery of sums due.
16. Delays, Suspension and Dormant Projects
16.1 The Company's Quotation is based upon the anticipated scope and duration of the Project at the date of the Quotation.
16.2 Where the Project is materially delayed, suspended, abandoned or remains inactive for a substantial period, the Company may review the Services, programme and Fee.
16.3 The Company shall not be liable for delay in performing the Services to the extent that such delay results from circumstances outside the Company's reasonable control or from any act or omission of the Client, a Duty Holder or a member of the Professional Team.
17. Completion and Final Inspection
17.1 The Client shall ensure that the Company is notified when the Works are approaching completion and shall afford the Company a reasonable opportunity to undertake a final inspection before completion and, wherever reasonably practicable, before occupation of the Works.
17.2 The Client shall provide, or procure the provision of, all documentation reasonably required by the Company before a Final Certificate can be considered.
17.3 Such information may include, where applicable:
a. Client, Principal Designer and Principal Contractor completion declarations;
b. commissioning certificates;
c. electrical installation certification;
d. energy performance information;
e. air permeability test results;
f. fire safety information;
g. structural or specialist certificates;
h. drainage test information;
i. as-built drawings or specifications; and
j. any other information reasonably required by the Company to discharge its Statutory Functions.
18. Final Certificate
18.1 The Company shall only issue a Final Certificate where it has taken such steps as it considers reasonable and is satisfied that the applicable statutory requirements for issuing the Final Certificate have been met.
18.2 The Company shall not be obliged to issue a Final Certificate where, amongst other matters:
a. necessary inspections have not been undertaken;
b. relevant work has been concealed and sufficient evidence has not been provided;
c. observed contraventions remain unresolved;
d. required certificates, declarations or other information remain outstanding;
e. the Company has not been afforded a reasonable opportunity to undertake a final inspection; or
f. the Company is otherwise unable to satisfy the statutory requirements for issuing the Final Certificate.
18.3 A Final Certificate shall not constitute a warranty or guarantee that every aspect of the Project complies with the Building Regulations.
18.4 The Company shall not be liable for losses arising from delay in issuing a Final Certificate where such delay results from outstanding information, unresolved contraventions, missed inspections or any matter outside the Company's reasonable control.
19. Professional Team and Third Parties
19.1 The Company shall have no responsibility for supervising or managing any member of the Professional Team or for the quality of their work.
19.2 The Company shall not be responsible for any act, omission, default or negligence of any member of the Professional Team.
19.3 Nothing within the Contract shall create any contractual relationship between the Company and any member of the Professional Team or other third party.
20. Intellectual Property
20.1 Copyright and all other intellectual property rights in documents prepared by the Company in connection with the Services shall remain vested in the Company.
20.2 Subject to payment in full of all sums due under the Contract, the Client shall have a non-exclusive licence to use documents prepared by the Company solely for purposes connected with the Project.
20.3 The Company shall have no responsibility or liability for the use of any such document for any project or purpose other than that for which it was prepared.
21. Insurance
21.1 The Company shall maintain such professional indemnity insurance and other insurance as is required for the lawful performance of its activities as a Registered Building Control Approver, subject to such insurance remaining available on commercially reasonable terms.
21.2 All insurance shall be subject to the terms, conditions, limitations, excesses and exclusions of the relevant policies.
22. Limitation of Liability
22.1 Nothing in the Contract shall exclude or limit the Company's liability for:
a. death or personal injury caused by its negligence;
b. fraud or fraudulent misrepresentation; or
c. any other liability which cannot lawfully be excluded or limited.
22.2 Subject to clause 22.1 and to the extent permitted by law, the Company's liability to the Client shall be limited to such amount as may be expressly stated in the Quotation or otherwise agreed in writing between the Company and the Client.
22.3 The Company's liability shall not exceed such sum as it would be just and equitable for the Company to pay having regard to the extent of the Company's responsibility for the relevant loss or damage and on the assumption that all other persons responsible for such loss or damage have paid such sums as it would be just and equitable for them to pay.
22.4 Subject to applicable law, the Company shall not be liable for any indirect or consequential loss, loss of profit, loss of business, loss of opportunity, loss of anticipated savings or loss of goodwill arising out of or in connection with the Contract.
22.5 Nothing within this clause shall operate to exclude or restrict any liability where such exclusion or restriction would be unlawful or unenforceable.
23. Assignment and Subcontracting
23.1 The Client shall not assign or transfer its rights under the Contract without the prior written consent of the Company.
23.2 Subject to its statutory and regulatory obligations, the Company may engage appropriately competent persons to assist in the provision of the Services where reasonably necessary.
23.3 The Company shall remain responsible for the proper performance of any Services undertaken on its behalf to the extent required by applicable law and regulation.
24. Rights of Third Parties
24.1 A person who is not a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
24.2 Unless expressly agreed otherwise in writing, the Company shall not be required to provide collateral warranties, letters of reliance or other contractual rights to third parties.
25. Suspension and Termination
25.1 Either party may terminate the Contract where the other party commits a material breach of the Contract and fails to remedy that breach within a reasonable period following written notice requiring it to do so.
25.2 Without prejudice to any other rights available to it, the Company may suspend or terminate its appointment where:
a. sums properly due remain unpaid;
b. the Client materially breaches its obligations under the Contract;
c. the Company is prevented or materially impeded from performing its Services or Statutory Functions;
d. necessary information is persistently withheld;
e. safe access to the Project is not provided;
f. the Project falls outside the Company's registration or competence;
g. the Project constitutes or involves Higher-Risk Building work;
h. an actual or potential conflict of interest arises which cannot reasonably be managed;
i. the Company reasonably considers that it will not be in a position to issue a Final Certificate;
j. the Company's registration as a Registered Building Control Approver is suspended, restricted or cancelled in a manner affecting the Project;
k. the Company is unable to maintain insurance required for the performance of the Services; or
l. the Company considers that cancellation of the Initial Notice is necessary or required by law.
25.3 Termination of the Contract shall not prejudice any rights, remedies or liabilities accrued before the date of termination.
26. Consequences of Termination
26.1 Following termination, the Client shall pay all Fees, Additional Fees, expenses and disbursements properly due in respect of Services performed up to the effective date of termination.
26.2 Where required or permitted by legislation, the Company may cancel the Initial Notice and notify the relevant Local Authority and Client accordingly.
26.3 Following cancellation of an Initial Notice, responsibility for building control may revert to the relevant Local Authority or otherwise be dealt with in accordance with applicable legislation.
27. Force Majeure
27.1 Neither party shall be in breach of the Contract by reason of delay or failure to perform a contractual obligation where such delay or failure results from circumstances beyond that party's reasonable control.
27.2 Such circumstances may include natural disasters, severe weather, fire, flood, epidemic, pandemic, war, terrorism, civil disorder, industrial action, failure of utilities or communications infrastructure, changes in law or governmental or regulatory action.
27.3 Nothing within this clause shall relieve the Company of any Statutory Function which cannot lawfully be excluded, suspended or delayed.
27.4 The Client's obligation to pay sums properly due for Services already performed shall not be affected by this clause.
28. Consumer Clients and Cancellation Rights
28.1 Where the Client is a Consumer, nothing within the Contract shall affect the Client's statutory consumer rights.
28.2 Where applicable, a Consumer shall have the statutory right to cancel the Contract within 14 days from the date upon which the Contract is entered into.
28.3 Where the Consumer expressly requests that the Company commence the Services during the 14-day cancellation period, the Consumer shall be liable to pay a reasonable amount for Services properly performed up to the date upon which the Company receives notice of cancellation, to the extent permitted by law.
28.4 Where the Services have been fully performed during the cancellation period following the Consumer's express request and acknowledgement, the statutory right to cancel may be lost to the extent provided by applicable consumer legislation.
29. Complaints and Disputes
29.1 Any complaint concerning the Company's Services should initially be made in accordance with the Company's published Complaints Procedure.
29.2 A copy of the Complaints Procedure is available on the Company's website or upon request.
29.3 The parties shall use reasonable endeavours to resolve any dispute arising under the Contract through good faith discussions.
29.4 Where appropriate, the parties may consider whether the dispute is suitable for mediation or another form of alternative dispute resolution before commencing court proceedings.
29.5 Nothing within this clause shall prevent either party from exercising any statutory right or remedy available to it.
30. Data Protection and Confidentiality
30.1 The Company shall process personal information in accordance with applicable data protection legislation and its published Privacy Policy.
30.2 The Client acknowledges that the Company may be required to disclose or share information relating to the Project with Local Authorities, the Building Safety Regulator, fire and rescue authorities, statutory consultees and other persons where reasonably necessary for the performance of the Services, Statutory Functions or compliance with legal or regulatory obligations.
30.3 Nothing within the Contract shall require the Company to withhold information where disclosure is required by law or by a competent regulatory authority.
31. Notices and Communications
31.1 Routine communications relating to the Project may be sent electronically using the contact details supplied by the Client.
31.2 The Client shall promptly notify the Company of any change to its contact details or to the identity or authority of any Agent.
31.3 Any notice concerning termination or other material contractual matters shall be given in writing.
31.4 A notice sent by email shall be deemed received on the next working day following transmission, provided that no notification of failed delivery has been received.
32. Entire Agreement
32.1 The Contract constitutes the entire agreement between the parties in relation to the Services and supersedes any previous discussion, correspondence, representation, arrangement or understanding relating to its subject matter.
32.2 Nothing in this clause shall exclude liability for fraud or fraudulent misrepresentation.
33. Variation
33.1 No variation to the Contract shall be effective unless agreed in writing between the parties, save where the Company is required to vary the manner in which the Services are provided in order to comply with legislation, regulatory requirements or its Statutory Functions.
33.2 Where a change in legislation or regulatory requirements results in material Additional Services, the Company shall be entitled to a reasonable adjustment to the Fee and programme.
34. Waiver
No failure or delay by either party in exercising any right or remedy under the Contract shall constitute a waiver of that right or remedy. Any waiver of a right or remedy shall apply only to the particular circumstances for which it is given.
35. Severability
If any provision or part of a provision of the Contract is found by a court or competent authority to be invalid, unlawful or unenforceable, that provision shall, to the extent required, be deemed deleted or modified to the minimum extent necessary. The remaining provisions of the Contract shall continue in full force and effect.
36. Governing Law and Jurisdiction
36.1 The Contract and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.
36.2 Subject to any statutory rights available to a Consumer, the courts of England and Wales shall have jurisdiction to determine any dispute or claim arising out of or in connection with the Contract.
37. Acceptance
These Terms and Conditions form part of the Company's appointment. By accepting the Company's Quotation, submitting an Application Form confirming acceptance of these Terms and Conditions or otherwise instructing the Company to commence the Services, the Client confirms that it has read, understood and agrees to be bound by these Terms and Conditions.