CDM Regulation 2015
The CDM Regulations 2015 are due to come into force on 6 April .2015, replacing the CDM Regulations 2007. Many aspects remain similar overall, but the division of responsibilities between duty holders has been adjusted with the 'client' being given increased overall responsibility and the CDM Co-ordinator role being removed altogether.
For construction works started before 6 April 2015, but finishing after that date, there are transition arrangements for a period of 6 months until 6 October .2015 (see below).
Main changes under the CDM Regulations 2015
The role of the ' CDM Co-ordinator' is abolished under the CDM Regulations 2015. That function is divided between 'client', 'principal contractor' and the new role of 'principal designer '. The 'principal designer' takes on the greater part of the existing CDM Co-ordinator role, particularly during the pre-construction phase.
In practice, it is expected that one member of the design team will be appointed to perform the role of 'principal designer'. This will necessarily be a 'designer' involved from concept stage. For this reason, it may, more often than not, be the Architect. The 'principal designer' will take responsibility for co-ordinating health and safety during the pre-construction phase. Although the 'principal contractor' will be primarily responsible for co-ordinating health and safety during the construction phase, the 'principal designer' will continue to have a close degree of involvement during the project and must liaise closely with the 'principal contractor', 'designers' and the 'client' during the construction works. The intention appears to be for the 'principal designer' to offer more continuous and more design-led health and safety input than the existing CDM Co-ordinator from start to finish of the project.
Where the 'principal contractor' is also a designer, he may undertake the role of 'principal designer'. It is uncommon, however, for a design and build contractor to be involved at the concept stage. Therefore, even in design and build projects, it is likely that a member of the design team will be appointed 'principal designer' to deal with the pre-construction phase. Where the design team is to be novated to the design and build contractor under a one stage O&B procurement, it is likely that the O&B contractor will be appointed 'principal designer' from the start of the construction phase in addition to 'principal contractor' (with the previous 'principal designer' as design sub-consultant to the O&B contractor) .
The 'principal designer' is also responsible for ensuring that all 'designers' comply with their duties under the CDM Regulations 2015.
The 'client' is obliged to appoint a 'principal designer' on any project that involves more than one contractor. Therefore, except on the simplest of projects where there is a sole contractor with no sub-contractors, the 'client' will be required to appoint a 'principal designer '. If the 'client' fails to appoint a 'principal designer', where one is required, the 'client' must carry out that role.
It is clear from HSE guidance notes that the 'principal designer ' must be a designer. So it would seem that an existing ' CDM co ordinator', who is not also a designer, will not be qualified to be appointed directly as a 'principal designer'. It should be possible for a party who is currently performing the CDM Co-ordinator role (and is not a designer) to be sub-contracted to, for example, the Architect to assist the Architect to perform the role of 'principal designer', where so appointed. Further clarification on this and other aspects are expected.
With the demise of the ' CDM Co-ordinator' under the CDM Regulations .2015, the 'client' will be responsible for: notifying the HSE of a notifiable project; appointing a 'principal designer' and a 'principal contractor'; ensuring that those with duties under the CDM
Regulations 2015 comply with their duties; providing pre-construction information; ensuring that required minimum health and safety standards are maintained on site throughout the project; ensuring that a construction phase health and safety plan is prepared by the 'principal contractor'; ensuring that a health and safety file is produced by the 'principal designer'. No doubt, many of the above duties will be delegated by the 'client', but the 'client' retains responsibility. Breach of duty attracts criminal liability with a maximum of two years' imprisonment and/or an unlimited fine.
For projects commenced after 6 April 2015 the new CDM Regulations 2015 apply in full.
For projects commenced before 6 April 2015, where a CDM Co-ordinator is already appointed, and which will definitely reach completion before 6 October 2015, there is no need for the 'client' to appoint a 'principal designer'.
CDM Co-ordinators in projects continuing after 6 April 2015 but definitely completing before 6 October 2015, continue to perform existing duties under the CDM Regulations 2007 but with some additional requirements set out under paragraph 5 of Schedule 4 of the CDM Regulations 2015. Those requirements should be reviewed in detail by those concerned. It may be that adjustments to existing CDMC appointments should be made.
For projects commenced before 6 April 2015 and which will not be completed before 6 October 2015, the 'client' must appoint a 'principal designer' as soon as practicable. That 'principal designer' will take-over and the CDM Co-ordinator will have no further role from 6 October 2015 (but might, in practice, be sub-contracted to the 'principal designer ' to provide continuity and support services- see above).
Other points to note
The Approved Code of Practice is withdrawn from 6 April 2015.
Draft Guidance on the CDM Regulations 2015 (dated 9 january 2015) is available via the HSE website. The final version of the new guidance notes is expected to be available on 6 April 2015.
Where there is more than one 'client', and an election has been made to the HSE specifying the 'client', the election should be made again after 6 April 2015 to ensure a clear and effective election under the CDM Regulations 2015.
The CDM Regulations 2015 apply to projects which are not notifiable as well as those that are notifiable. Therefore, 'clients' should review their non-notifiable projects as well as those that are notifiable.
The JCT will be producing amendments to its suite of standard form contracts to take account of drafting changes required to accommodate the CDM Regulations 2015. In any event, the BSDR Construction Team will make appropriate drafting available for client use to accommodate the changes.
Project documentation for projects commencing after 6 April 2015 will need to comply with the new CDM Regulations 2015.
Projects that have commenced before 6 April 2015, but will CDMplete after 6 April 2015, should be checked and appropriate action taken.