On 9 January 2015, draft legal guidance on the Construction (Design and Management) Regulations 2015 (2015 Regulations) was issued by the Health and Safety Executive (HSE) which contained the proposed final version of the 2015 Regulations.
Subject to Parliamentary approval, the 2015 Regulations will come into force on 6 April 2015.
HSE took care to emphasise that the draft 2015 Regulations (and associated draft legal guidance) may change during its passage through Parliament. We suspect that if there are any changes then these are likely to be of a minor nature, however, the passage of the Regulations through Parliament should be watched closely in case anything does change.
So, in the meantime, what are the headline changes to be aware of and what should you do to prepare for 6 April?
The notification threshold has changed so going forward, HSE will need to be notified about projects exceeding 500 person days or "longer than 30 working days" with "more than 20 workers working simultaneously". This should reduce the number of notifiable projects.
Notification no longer triggers additional duties
The notification threshold no longer triggers additional duties to notification. Instead, additional duties are sparked by there being more than one "contractor". So, for example, a principal contractor must be appointed where there is more than one contractor on a project as opposed to when the project is notifiable.
Removal of the CDM co-ordinator and introduction of the principal designer
A major change is the removal of the CDM co-ordinator role and introduction of the new "principal designer" role. Again, the number of contractors (more than one) triggers the appointment of the principal designer and new Regulation 11 sets out the principal designer duties. The principal designer must be appointed by the client in writing and is the designer with control over the pre-construction phase of the project. It will be interesting to see how this works in practice and what effect it has on the costs of engaging the designer who is also the "principal" designer. Construction contracts and related real estate agreements will require amendment to reflect the new role and terminology.
Approved Code of Practice abolished and replaced with new guidance
The Approved Code of Practice will be abolished from 6 April 2015 and replaced by new shorter guidance, which will hopefully encourage greater compliance.
Written construction phase plans for all projects
Written construction phase plans will now be required for all construction projects instead of only notifiable projects which may mean additional work on small projects where such detail has not been previously required.
A move away from the competence bureaucracy
The 2015 Regulations' approach to competence differs from the 2007 heavily criticised complex approach. The 2015 Regulations retain a general requirement for those instructing others to ensure they have the appropriate training and information, however, HSE make clear that the competence of industry professionals is the responsibility of the relevant professional bodies and institutions.
Domestic clients now subject to the 2015 Regulations
The Regulations now apply to all "clients", namely "any person" for whom a construction project is carried out and this means domestic clients are now subject to the 2015 Regulations. This is not as drastic as it sounds because domestic clients will be able to delegate the majority of their duties to a principal designer or principal contractor. Default provisions have been put in place if a domestic client fails to make the relevant appointments – the designer in control of the pre-construction phase will be the principal designer and the contractor in control of the construction phase will be the principal contractor. It remains to be seen how this change may impact on small domestic projects.
A simpler layout
The layout has been revised to try and make the 2015 Regulations more accessible. Parts 2 and 3 which concern the various duties of the dutyholders on construction projects have been subject to major amendment whereas Part 4 and Schedule 2 which relate to technical standards and health and safety on construction sites are essentially unchanged. Part 5, which concerns transition and Regulation review, has been amended to include comprehensive transitional provisions at Schedule 4 and a new Regulation 39 which provides scope for further amendments to the Regulations by way of Secretary of State review from "time to time".
Preparations for 6 April
- For projects which will complete before 6 April you don’t need to do anything.
- For projects underway on 6 April with more than one contractor where a CDM co-ordinator has not been appointed, if the construction phase has not started, the client must appoint a principal designer or, where it has started, the principal contractor will be responsible for the health and safety file.
- For projects underway on 6 April where a CDM co-ordinator is appointed, the client must appoint a principal designer by 6 October 2015. In the interim, the CDM co-ordinator must comply with the principal designer duties listed in the Regulations.