There has been much industry discussion over recent months as to who should fulfil the new role of Principal Designer under the Construction (Design and Management) Regulations 2015 (CDM 2015). This article looks at why this is proving to be such a conundrum for industry and considers some possible solutions.
What’s the problem?
The role of CDM Co-ordinator has been abolished and certain of the specialist health and safety duties previously carried out by the CDM Co-ordinator are to be carried out by a party (the new Principal Designer) who has not previously carried out these duties. Many of those who could potentially be Principal Designer are understandably reluctant to take on the new role because they have concerns as to competence which in turn impacts on the question of insurability.
Matters are not helped by the fact that it is not clear who should perform the role. If the legislation or HSE guidance identified a particular party (such as the architect) then while the new role might take some getting used to, there would be no argument as to who should fulfil the role. However, CDM 2015 is not clear cut.
CDM 2015 provides that the Principal Designer needs to be the designer with control over the pre-construction phase of the project. More than one contractor being present on site triggers its appointment and it needs to be appointed in writing by the client as soon as is practicable before the construction phase begins. This looks straightforward enough. At first glance the obvious candidates for the role are the architect or engineer or perhaps the design and build (DB) contractor. However, on closer inspection, it is not that simple.
First off, the definition of "design" and "designer" is extremely wide to the extent that it could potentially include those who most would not identify as "designers" in the true sense of the word, such as quantity surveyors and project managers. This means that the majority of consultants could potentially be classed as a "designer" under CDM 2015. This in itself is not a major problem as it gives the client lots of choice as to candidate and means that the architect/engineer or DB contractor could still be Principal Designer – however, it does not provide certainty.
The problem comes with the next hurdle – the designer needs to have "control" over the pre-construction phase of the project – but what does "control" mean? CDM 2015 doesn't define "control" however, previous general caselaw refers to the Concise Oxford English Dictionary when considering the meaning of this word defines “In control of” as “directing an activity” and "control” is defined as the “power of directing, command”. Using this definition, the pool of parties from who the Principal Designer could be selected is narrowed significantly and raises the issue in the DB context of whether the DB contractor has "control" over the pre-construction phase?
The next issue is how early the Principal Designer needs to be appointed. The final version of the HSE guidance provides that the Principal Designer "should be appointed as early as possible in the design process, if practicable at the concept stage". This could throw a spanner in the works if the intention is to make the DB contractor Principal Designer because they may not be appointed early on enough. The draft HSE guidance issued pre 6 April did not address this issue but the final version does. It states that "…For projects involving early work by a concept architect or project management company where a design and build contractor or novated designer is subsequently involved, it may be appropriate for the initial principal designer appointment to be ended and a new principal designer appointed.. ".
So: who should be Principal Designer?
Possible solutions (which are dependent upon the individual circumstances of the matter) include the following:
- A designer with control over pre-construction phase is appointed Principal Designer.
- A designer appointed as Principal Designer could subcontract health and safety specific services to consultant who performed old CDM Co-ordinator role. Interestingly the new RIBA Principal Designer amendments envisage a Health and Safety advisor, separate to the Principal Designer who will provide advice to the Principal Designer on health and safety issues.
- The client could be Principal Designer (and subcontract these duties as necessary).
In DB procurement:
- The designer (such as the architect) initially appointed by the client before the DB contractor is appointed could be Principal Designer and continue to perform duties once novated (or instead of novation could provide a warranty to the DB Contractor and stay with the client); OR
- The DB contractor could be Principal Designer (if appointed early enough and if in control of the pre-construction phase);OR
- The client could initially appoint the Principal Designer and then on appointment of DB contractor, terminate the Principal Designer appointment and the DB contractor can carry out the Principal Designer's duties (which is an option mentioned by the HSE guidance and the NEC guidance); OR
- The client could carry out duties of the Principal Designer (and subcontract these duties as necessary).
The answer to this question is not clear cut however, we think as industry engages with CDM 2015, market practice will gradually determine the answer to this question and the six month transition period following the 6 April introduction gives everyone time to consider what will work best for them.