Staying on top of construction projects

17 Feb 2015Feature

Are you prepared for the introduction of the Construction (Design and Management) Regulations 2015, asks Chris Holwell

The Construction (Design and Management) Regulations (CDM Regulations) are a key piece of health and safety legislation, affecting construction, engineering projects and property development. They have been in force for a number of years, but are about to be significantly changed.

Maintenance work

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.

The existing regulations have been in force since 2007, but are due to be replaced by the long-awaited Construction (Design and Management) Regulations 2015, which will, subject to parliamentary approval, come into force on 6 April 2015. Draft guidance in preparation for their implementation was published by the Health and Safety Executive (HSE) on 9 January 2015, which may be subject to minor changes while awaiting parliamentary approval.

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.

Any solicitor advising a client who is having significant building or engineering-type work done on their property should be aware of the new regulations and how they differ from the previous regime. The main changes are considered below.

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 two 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 ‘buildability’ 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 and 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 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.

A construction phase plan is now required for all projects, even domestic ones, before any works commence.

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 6 April 2015. 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 this as evidence of breach of the regulations, unless it can be satisfied that the accused has complied with
the law in some other way.

Before the new ACoP is published, HSE Legislation Series and Construction Industry Training Board guidance is available.

IITS requirements

The client has to ensure that those appointed
to the role of principal contractor and principal designer have the appropriate information, instruction, training and supervision (IITS).

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 will contain transitional provisions to cover projects that are underway on
6 April, thereby preventing any unnecessary rework in projects that only have a few months to run. CDM coordinators who are already appointed on projects that go beyond 6 April will be allowed to remain in that role until the end of the project, so long as that occurs within six months. If the project runs for longer, then a principal designer will have to be appointed.

In the period before appointment of the principal designer, the appointed CDM coordinator will be required to comply with the duties under schedule 4 of the new CDM Regulations 2015. These duties reflect the existing requirements under CDM 2007 for the CDM coordinator rather than requiring that they act as principal designers, which they are not likely to be qualified for.

For projects due to commence before 6 April, where the construction phase has not yet started and the CDM coordinator has not been appointed, the client must appoint a principal designer as soon as practicable. SJ

Key points

The following points will need to be considered in advance of the changes being implemented:

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, it would be the principal designer rather than a principal designer’s sub-consultant who would be prosecuted in the event of an accident. 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 that 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.

Chris Holwell is a construction and engineering partner at Freeths

@Freeths