Construction (Design & Management) Regulations 2015 – Are you prepared?

The CDM Regulations, issued under the Health and Safety at Work Act, are intended to ensure that health and safety issues are properly considered during a project’s development so that the risk of harm to those who have to build, use and maintain structures is reduced. They have a very wide application, including refurbishment and maintenance work as well as new build, and criminal sanctions apply for breach of them. There can also be liability under civil law.

Any solicitor advising a client who is having significant building or engineering type work done on their property, should be aware of the Regulations. Therefore the remainder of this Article will focus on how the Regulations have changed from the ones which have applied since 2007.

The long awaited Construction (Design & Management)Regulations 2015 came into force on 6 April 2015. Draft guidance in preparation for their implementation was published by the HSE on 9 January 2015.

The new Regulations recognise that the Client is actually the head of the supply chain for any construction project and should be the party best placed to set out the required standards. This may be true in the case of experienced developers but the new Regulations also apply when the client has no experience of the property or construction industry, even when the client is a homeowner having work done on their own home.

End of CDM Coordinator

Under the new regime, there will no longer be an official role of CDM Coordinator. For future projects a Client will need to appoint a “Principal Designer” for all projects that involve more than one “contractor”, on site at a time (here “contractor”does not mean a main contractor, a main contractor plus one subcontractor makes 2 “contractors” on site for the purposes of the Regulations). It is expected that the “Principal Designer” will be a member of the design team, for example the architect, structural engineer or services engineer. The main thrust of their role is in pre-construction coordination, but they also have a duty to liaise with the Principal Contractor and make sure that the Construction Phase Plan is updated and implemented and that the Principal Contractor is complying with the site rules and regulations.

However, some architects or engineers may not have the health and safety or build ability experience to take on the role of Principal Designer. One solution could be to subcontract the role but there are concerns that the person taking on the Principal Designer responsibility would not then be as familiar with the design as they are required to be. Architects could have a separate Principal Designer in their team from day one or they may need to have their own in-house health and safety team if they are going to start taking on the Principal Designer role.

Principal Designer & Principal Contractor

If a project has more than one “contractor” on site then both a “Principal Designer” and “Principal Contractor” have to be appointed. The Client must appoint both in writing, otherwise the Client is deemed to be carrying out these roles,which given the potential criminal and civil liability is something a well advised Client will be keen to avoid.

Domestic Clients

Duties will now be applicable to domestic (homeowner) projects. For such projects involving more than one contractor, the Principal Contractor will normally assume the Client duties. The domestic client still has to appoint the Principal Designer. Where they do not make this appointment, the first designer appointed during the pre-construction phase will be deemed the “Principal Designer” for the project. This means that the Principal Designer will be answerable to the Principal Contractor in its role as client and will be responsible for liaising with it.

Changed Notification Level

The Client will now need to make the relevant notification to the HSE if the project will exceed 30 construction days with 20 or more workers simultaneously on site or if the project exceeds 500 person days. However, it needs to be noted that this will not be the trigger for the appointment of the Principal Designer or the Principal Contractor. The trigger for those appointments is instead where there is more than one “contractor” on site as referred to above, no matter how small the project.

Approved Code of Practice

A slimline Approved Code of Practice (ACoP) will be published after 6th April. Although failure to comply with an ACOP is not an offence in itself, the code has special (quasi) legal status rather like the Highway Code. If it is proved that the ACoP has not been followed, a court can regard it as evidence of breach of the Regulations unless it can be satisfied that the accused has complied with the law in some other way.

Prior to publication of the new ACoP, HSE Legislation Series and CITB Industry Guidance is available.

IITS Requirements

The Client has to ensure that those appointed by him to the role of Principal Contractor and Principal Designer have the appropriate Information, Instruction, Training and Supervision.

There is also a requirement that anyone working on a construction project should be able to demonstrate capability and possess the necessary resources to fulfil their legal duties. They will be required to provide sufficient information in relation to the preparation, provision and where necessary revision, of health and safety information such as Pre-Construction Information, Construction Phase Plans and Health and Safety Files.

Transitional Provisions

The new Regulations contained transitional provisions to cover projects that were underway on 6th April, thereby preventing any unnecessary re-work in projects that only had a few months to run. CDM Coordinators who were already appointed on projects which went beyond 6th April were allowed to remain in that role until the end of the project so long as that occurred within 6 months, if the project runs for longer than a Principal Designer will have to be appointed.

Points to Consider

The following points are just a few that need to be considered when following the new guidelines:

• Is the Principal Designer able to fulfil its duties in relation to the pre-coordination function and is this included in the Scope of Services within their appointment? If not, this will be an additional service that will cost the Client.
• If the role of Principal Designer were to be subcontracted to a sub-consultant, in the event of an accident, it would be the Principal Designer rather than a Principal Designer’s sub-consultant who would be prosecuted. Could the Principal Designer then counter claim for any losses against the sub-consultant’s professional indemnity insurance, on the grounds that they had taken advice from a competent person, or would the rules prohibiting insurance of criminal fines come into play?
• Where a CDM Coordinator has already been appointed for a project which will require a Principal Designer at some stage, it will need to be considered whether the appointment of the CDM Coordinator can be terminated due to a change in law.
• It is absolutely essential to ensure that domestic clients are made aware of their duties and that these can be discharged by the contractor or the designer – something solicitors should now point out when acting for clients who are going to have work done on their houses.