On 6 April 2015, the new Construction (Design and Management) Regulations 2015 came into force. The key change is the replacement of the CDM Co-ordinator with a new role of “Principal Designer”.
CDM Regulations 2015
In a bid to increase health & safety standards in the construction industry, the Construction (Design and Management) Regulations 2015 came into force on 6 April 2015, replacing the 2007 regulations.
The aim of CDM 2015 is to put health & safety at the centre of construction projects, to erase the sometimes previously held view that health & safety is an administrative “add-on”.
The key change is that, in projects where there is more than one contractor (or it is foreseeable that there might be), the client must appoint a “principal designer”. A key question faced by the construction industry is who should that be?
CDM 2015 imposes three essential requirements for the principal designer:
- it must be a “designer” (regulation 5(1))
- the designer must have “control over the pre-construction phase” (regulation 5(1))
- the designer must have the “skills, knowledge and experience” to fulfil that role (regulation 8(1)).
Who is a designer?
The HSE guidance provides a wide definition. It is someone who prepares or modifies a design for a construction project or arranges for, or instructs, someone else to do so. The examples given include engineers, quantity surveyors, technicians and “anyone who specifies or alters a design”.
Accordingly, this requirement does not seem difficult to satisfy. If, factually, a person or company has carried out design then they can be a “designer”.
What is control over the pre-construction phase?
The “pre-construction phase” means “any period of time during which design or preparatory work is carried out for a project and may continue during the construction phase”.
In our view, the “pre-construction phase” is likely to be at least up until a design is finalised. However, if that design is later modified or changed then that could be within the “pre-construction phase” too.
Once the relevant phase has been identified, the next question to ask is who has the ability to fulfil the role of principal designer.
The principal designer’s role includes coordinating the work of others to ensure that health and safety is managed during the pre-construction phase. The principal designer must also identify foreseeable risks to health and safety to ensure that the design team eliminates the risks associated with design elements or, if that is not possible, reduces or controls them. To fulfil these duties, “control” is required.
The question of “control” is largely a practical one. The HSE guidance gives examples of the ability to bring together designers on a regular basis, to ensure that everyone carries out their duties. It also refers to the principal designer regularly chairing design meetings in order to discuss the risks that should be addressed during the pre-construction phase, to design control measures and to agree the information that will help prepare the pre-construction phase.
Skills, knowledge and experience
Under CDM 2015, anyone appointing a designer or being appointed as a designer must ensure that they have the skills, knowledge and experience to carry out their duties. This requirement is self-explanatory and indeed, contractors should always ensure this is the case before accepting any obligation to a client.
Who is likely to be appointed?
The first thing to mention is that if a client does not appoint a Principal Designer, it will be required to fulfil the duties of a Principal Designer itself (Regulation 5(3)). Assuming it wants to appoint someone else, the obvious candidate is the architect. However, architects should consider whether they have the right skill set to accept the role of principal designer and whether they have sufficient control of the project to fulfil their health & safety duties.
Another possibility seems to be that ex-CDM Co-ordinators re-brand themselves and principal designer sub-contracts with them in relation to health & safety duties. That approach might utilise the right skill set but it does have the potential of adding a layer of cost. Both the designer and their “CDM co-ordinator” sub-contractor would likely have to attend design meetings, the parties would incur costs in liaising and the client may also require a collateral warranty with the sub-contractor.
Further, when considering who should be the principal designer, the client and the designer should ensure that they have adequate professional indemnity insurance. Does that insurance cover the work of a principal designer?
CDM 2015 attempts to make health & safety central to design. It remains to be seen whether those duties will be accepted by architects or whether the role will be managed in a different way, potentially distancing it from design and increasing the cost of the project overall.