With health and safety in buildings under increasing scrutiny, we look at the legal requirements for health and safety files and provide some top tips for commercial property transactions. Introduced in 1994 and retained under current regulations, the health and safety file is a key document in providing owners and occupiers with information about past construction projects in a building.
What is a health and safety file?
The Construction (Design and Management) Regulations 2015 (“Regulations”) require the principal designer in a construction project to prepare a health and safety file during the pre-construction phase which is appropriate to the characteristics of the project and which contains information relating to the project which is likely to be needed during any subsequent project to ensure the health and safety of any person.
Afterwards, the file must be appropriately reviewed, updated and revised to take account of the building work and any changes that have occurred.
At the end of the project, the principal designer or principal contractor must give the health and safety file to the client. The client is anyone for whom a construction project is carried out (note that there are some differences between commercial and domestic clients).
The health and safety file does not need to be on paper necessarily, it could also be produced electronically, for example.
Who prepares the health and safety file?
The Regulations require the principal designer to prepare and maintain the health and safety file but it is the client’s responsibility to ensure that the file is prepared by the principal designer and dealt with in accordance with the Regulations.
The principal contractor will also need to provide the principal designer with any information in its possession that is relevant to the health and safety file during the project and takes on responsibility for the health and safety file if the principal designer’s appointment concludes before the end of the project.
When do I need to prepare one?
The Regulations require an up to date health and safety file for the duration of the project. A project does not just include the initial construction of a building but also building works involved in repair, maintenance (including some cleaning activities), demolition, site clearance and installation of certain equipment.
A health and safety file will also be required for any further works to an existing project. In a subsequent project, the health and safety file will need to be updated or a new one prepared for any subsequent works (note that the Regulations are not clear as to whether a new file is needed or the existing one should be updated).
What should I expect to see in the health and safety file?
The Regulations state that the file should be appropriate to the characteristics of the project and so the contents will vary for each project. Typically, you might expect to see items such as as-built drawings, instructions for how to safely carry out maintenance and cleaning and any hazards at the property (eg asbestos or contaminated land).
Who should receive the health and safety file at the end of a project?
The Regulations require the principal designer or (if their role has ended) the principal contractor to hand the file over to the client.
On any disposition of the client’s interest in the project, the client must provide the health and safety file to the person acquiring the client’s interest and must ensure that that person understands the nature and purpose of the file.
The health and safety file should also be kept available for inspection by any person who may need it to comply with any relevant legal requirements. Details of the file and where it can be inspected should therefore be provided by a landlord to any tenant.
Practical tips for commercial property transactions
- On the sale of a property, the seller must hand the health and safety file over to the individual or organisation who will take on the client duties and ensure that the new client is aware of the nature and purpose of the file.
- On the sale of part of the property, the seller should ensure that any relevant information in the file is passed on or copied to the new owner.
- When granting a lease of the property, the landlord must make the file available to any tenant of the property. The responsibility for keeping and maintaining it would need to be considered on a case by case basis, for example (a) if the property is let to one tenant on an FRI lease, it may be appropriate for the tenant to keep and maintain the health and safety file until its lease ends or (b) if the property is located within a building with other tenants, the landlord would typically be responsible for the health and safety file, but it must be made available to the tenants for inspection.
- If the tenant of the property carries out construction works at the property where it is the client for the purpose of the Regulations (ie the project is being carried out for the tenant) then the landlord (as original client) should arrange for the existing file to be made available to the tenant so it can pass it to its principal designer. The tenant should also be required to provide information relating to its work so that the health and safety file for the property can be updated.
- The CPSE replies that are provided for any transaction should contain details of the health and safety file and how this will be dealt with.