On Friday 9 January 2015 the Health and Safety Executive published draft Guidance on the new Construction (Design & Management) Regulations 2015. It is expected that the new regulations will come into effect on 6 April 2015 for new and existing projects. For projects already underway on that date clients will have 6 months to comply with certain aspects of CDM 2015. There are new special provisions for Domestic Clients. Breaches of the new rules may result in criminal liability for which the maximum penalty is an unlimited fine or 2 years imprisonment, or both.
The Regulations have been simplified so that they are easier to read. The CDM co-ordinator is replaced by the Principal Designer. There are some substantive changes but in general the same tasks under CDM 2007 are in some cases carried out by different people.
Client duties are strengthened under the new rules. Clients are to:
- appoint the Principal Designer and Principal Contractor on any project where there is more than one contractor (at any level), or if it is reasonable and foreseeable that more than one contractor will be working on a project at any time - in default, the client will fulfil these roles
- make suitable arrangements for managing a project
- take reasonable steps to ensure that the Principal Designer and Principal Contractor comply with their duties under the Regulations – the Guidance suggests that this could be done through reports to the client either in progress meetings or in writing
- ensure that the Principal Designer prepares a health and safety file for the project where a project involves more than one contractor – the Guidance sets out the actions a client might take, such as providing a copy of the existing file to the Principal Designer and checking that it is regularly updated, reviewed and revised to take into account any work that has been carried out
- provide pre-construction information (including information about health and safety hazards) to every designer and contractor appointed or who is being considered for appointment
The Principal Designer is to plan, manage, monitor and co-ordinate health and safety during the pre-construction phase. The ‘pre-construction’ phase is a misnomer because it does not necessarily end on commencement of the construction phase as it includes any period during which design work is carried out.
The Principal Designer is the "designer" who is in control of the pre-construction phase, usually he or she will be the lead consultant of the design team. Existing lead designers will need to consider if they have the appropriate skills and experience to take on this role.
Who will carry out this role at the start of the construction phase will depend on the procurement route selected. It may be different for design & build than for construction management.
The Principal Designer must prepare the health and safety file unless his appointment ends before the end of the construction phase, in which case the file is handed to the Principal Contractor to complete. The Principal Designer also takes on most of the CDM co-ordinator's duties in relation to pre-construction information, co-operating between project participants and sharing information with the Principal Contractor.
The Principal Contractor has to plan, manage, monitor and co-ordinate health and safety during the construction phase. The main change is that overall co-ordination is now the duty of the Principal Contractor rather than each duty holder being responsible to co-ordinate their health and safety activities with one another.
The client's duty to check the competence of those it appoints has changed. The new rules provide that any person who is responsible for appointing a designer or contractor must ensure that they have the necessary skills, knowledge, experience and organisational capability to fulfil their role in a manner that secures the health and safety of any person affected by the project.
Some changes have been made to the definition of a notifiable project, but the Regulations will apply whether or not the project is notifiable.
The Guidance replaces the Approved Code of Practice. Failure to comply with the Guidance will not automatically carry criminal liability. However, the Guidance is material to the interpretation of CDM 2015. Ignore it at your peril.
- For projects that have already started on 6 April 2015, duty holders can elect to implement the new rules on any date up to 6 October 2015 at the latest. Transitional arrangements will apply:
- Clients will need to consider those projects which were not notifiable under the previous rules and check the extent to which the new rules impose extra duties
- There is nothing in the new rules to suggest that clients who have made an election under the current rules will be deemed to have made an election under CDM 2015. Where there is more than one client and an election under CDM 2007 has been made it seems that a fresh election will be needed
- If a CDM co-ordinator has been appointed, a Principal Designer must be appointed before 6 October 2015 unless the project has been appointed; in the interim, the CDM co-ordinator must comply with duties under CDM 2007 regulations 5 and 20 and pass the health and safety file and any other relevant information to the Principal Designer on his appointment
- If there is no existing CDM co-ordinator:
where the construction phase has not started, a Principal Designer must be appointed as soon as practicable
where the construction phase has started, a Principal Designer may be appointed and if the client does not appoint a Principal Designer (there is no express time limit by when this is to be decided), the Principal Contractor is responsible for preparing the health and safety file
- Duty holders must familiarise themselves with the additional and changed duties, many of which will apply from 6 April 2015. Clients will need to satisfy themselves that their designers and contractors meet the new competence criteria
- The CDM co-ordinator will need to prepare a draft health & safety file which complies with the new rules and hand over the draft file and other relevant information to the incoming Principal Designer; clients should check if the services to be performed by the CDM co-ordinator need to be varied
- The Client may need to revisit the services of its existing CDM co-ordinators to comply with CDM 2015
- Existing Principal Contractors will be deemed to have been appointed as Principal Contractor under CDM 2015
It seems likely that the standard form building contracts will need to be amended.