Gillian Thomas summarises the key changes introduced by the new Construction (Design and Management) Regulations 2015 which come into force on 6 April this year.
Those of you familiar with the Construction (Design and Management) Regulations 2007, will know that they govern the management of health, safety and welfare when undertaking construction projects. Subject to some transitional provisions mentioned below, CDM 2007 will be replaced on 6 April 2015 by the Construction (Design and Management) Regulations 2015. A draft of CDM 2015 with related guidance was made available at the beginning of this year. While there are some changes of substance, CDM 2015 largely requires the same duties as those under CDM 2007 to be discharged, but by different persons. We summarise some of the key changes below.
Enhanced duties for Clients:
As with CDM 2007, the Client is any person for whom a construction project is carried out. CDM 2015 recognises that the Client has a major influence over the way a project is procured and managed and so places a heavier emphasis on the Client in terms of making suitable arrangements for managing the project so that health, safety and welfare on site is secured. The guidance accompanying the draft regulations give direction as to what are considered suitable arrangements, including:
- Assembling the project team
- Ensuring the roles of team members are clear
- Ensuring sufficient time and resources are allocated at appropriate stages of the project
- Ensuring effective mechanisms are in place for project team communication
- Ensuring suitable welfare facilities are provided for the duration of the construction work.
Role of Principal Designer
The role of the CDM Co-ordinator will be abolished. In its place, a Principal Designer is to be appointed by the Client to plan, manage, monitor and co-ordinate health and safety during the pre-construction phase and any period during which design work is carried out. While CDM 2007 did not direct who should be appointed to the role of CDM Co-ordinator or the form of that appointment, CDM 2015 requires that the Client must appoint, in writing, a designer with control over the pre-construction phase as Principal Designer. It is the responsibility of the Client to take reasonable steps to satisfy themselves that the designer that they appoint has the skills, knowledge and experience necessary to fulfill the role. In addition, any designer must not accept an appointment as Principal Designer unless they have the required skills, knowledge and experience.
It is not clear whether existing CDM Co-ordinators will be able to transfer to the role of Principal Designer as they may not satisfy the requirement of being a designer. Indeed, given that the pre-construction aspects of health and safety management have, until now, been discharged by CDM Co-ordinators (and before them Planning Supervisors), it is not clear whether lead consultants will necessarily have the skills, knowledge and experience to take on this role.
The accompanying guidance provides some assistance in what reasonable steps the Client may take in satisfying itself as to whether the designer has the requisite skills, knowledge and experience. These steps include review of organisational policies and procedures, the use of pre-qualification questionnaires, evidence of memberships of established professional bodies and recent track record.
Transitional arrangements for existing projects
For projects already in progress as at 6 April 2015, transitional arrangements will apply but from 6 October 2015 the obligation to comply with CDM 2015 will apply regardless of when the project started. The following transitional arrangements will apply:
- Where a CDM Co-ordinator has already been appointed,
- a Principal Designer must be appointed before 6 October 2015 unless the project is completed by that date
- the existing CDM Co-ordinator must comply with duties broadly reflecting those imposed on him under CDM 2007 but do include some additional obligations, including, cooperation with the Principal Designer on his appointment
- where there is no existing CDM Co-ordinator
- if the construction phase has not started, a principal designer must be appointed as soon as practicable
- if the construction phase has started, a principal designer may be appointed and if the Client does not appoint a Principal Designer, the Principal Contractor is responsible for preparing the Health and Safety File.
- Existing Principal Contractors will be treated as having been appointed as Principal Contractor under CDM 2015.
It is fair to say that CDM 2015 appears to be causing concern amongst some Clients, in particular identifying who should be appointed to the role of Principal Designer and how to discharge the additional Client duties. In both cases, the approach will probably differ depending on procurement method and existing approach to pre- qualification procedures. Hopefully, focus on compliance with the letter of the regulations will not be at the cost of effective health and safety measures.