The Construction (Design and Management) Regulations 1994 (usually known as the CDM Regulations) will be replaced on 6 April 2007. The revised CDM Regulations will apply to projects ongoing or post 6 April 2007 and will impact on construction and property contracts due to major health and safety changes.
Key implications for clients in the property and construction sector include:
- Few transitional provisions for ongoing projects;
- An increased focus on construction clients to put in place arrangements to ensure health and safety;
- A declaration will have to be made to the Health and Safety Executive (HSE) of how long contractors will be given to plan and prepare for construction work;
- Clients' agents will not be allowed for projects starting after 6 April 2007;
- Planning supervisors will become "CDM co-ordinators";
- Clients will be deemed to be the principal contractor or CDM co-ordinator for any period during which appointments have not been made of another person; and
- Additional duties on clients and "duty holders" generally.
The CDM Regulations set out health and safety duties on clients, planning supervisors, designers and contractors for construction projects. The CDM Regulations 2007 are the product of several years of consultation by the Health and Safety Executive (HSE).
An Approved Code of Practice (ACOP), which will give practical guidance on the application of the CDM Regulations, will be published in advance of 6 April (although the publication date has been delayed a number of times).
However, despite similarities between the 1994 and 2007 CDM Regulations, duty holders should review their health and safety procedures. The HSE take the view that the new CDM Regulations reflect current best practice.
The 2007 Regulations also revoke and replace the Construction (Health, Safety and Welfare) Regulations 1996.
The duty holders for the purposes of the CDM Regulations will remain the same. Duties are placed on:
- Clients (commercial purchasers of construction/engineering works and services);
- Designers (anyone who prepares or modifies a design);
- Principal contractors (typically "main" contractors);
- Contractors (typically sub-contractors); and
- CDM co-ordinators (formerly planning supervisors).
It is possible to carry out more than one role (e.g. design and build contractors could be the principal contractor, a contractor, a designer and the CDM co-ordinator).
The CDM Regulations 2007 will still distinguish between "notifiable" and "non notifiable" projects. "Notifiable" means that notice of the project must be given to the HSE. There is a subtle change in criteria for notification of a project. The CDM Regulations 2007 class notifiable projects as projects likely to involve more than 30 days or 500 person days of construction work. The current test is projects that will involve that amount of work so there is a chance that more "marginal" projects (e.g. relatively minor works) will be subject to the full range of duties. If a project has been fully notified to HSE under the CDM Regulations 1994 then there is no need to give a further notice under the 2007 Regulations. The 2007 CDM Regulations list duties that apply to all projects, and additional duties for notifiable projects, which are the focus of this article.
The core duties on every party will be to co-operate and co-ordinate with others:
- Every person involved in a project will have to seek co-operation from and co-operate with others involved in construction work on the same or adjoining sites in relation to health and safety issues. The requirement to co-operate with persons working on adjoining sites is new and may be difficult to achieve.
- Each party involved in a project is expected to co-ordinate their activities from a health and safety perspective.
All duty holders will have to take account of the "general principles of prevention" in performing their duties. These general principles include avoiding, evaluating and combating risks at source; adapting to technical progress; and giving collective protective measures priority over individual measures.
The client's duties
The CDM Regulations 2007 increase the emphasis on the client for ensuring health and safety compliance. In most cases, clients will be relying on experienced professionals to help them discharge their duties (although legally the duties cannot be transferred to the professional team).
Under the CDM Regulations 1994, clients could delegate their duties to an agent. Clients' agents will not be allowed for new projects after 6 April 2007.
Under the transitional provisions, clients' agents will be allowed to continue in that role for existing projects until 5 April 2012 if the agent agrees to assume the duties of a client under the CDM Regulations 2007. It will be important for clients to review any arrangements with their agents in advance of the coming into force of the new Regulations.
Most developers operate a number of subsidiary companies or enter into joint ventures with funders/partners. In many such cases there may be more than one person fitting the description of a client. The new Regulations will allow one client to be nominated to fulfil the client's duties but the nominee must meet the requirements of a client under the CDM Regulations.
Other client duties include:
- To put in place project management arrangements for health and safety and check that adequate welfare facilities for workers are in place;
- To ensure sufficient time is given to the principal contractor to plan and prepare for work (which is likely to have programme implications);
- To provide information in its possession relating to health and safety;
- To satisfy itself that the principal contractor's construction phase plan (which replaces the health and safety plan) complies with the CDM Regulations before work starts; and
- To ensure that the health and safety file is kept revised (including any information that must be kept under the asbestos regulations).
If a building is sold, the client must deliver the health and safety file to the purchaser and ensure the purchaser is aware of the nature of the purpose of the file. The latter point should be addressed in sale contracts.
The health and safety file may relate to more than one project, site or structure, provided that the information relevant to each part project, site or structure can be easily identified.
Clients must appoint a CDM co-ordinator as soon as practicable after initial design or other preparation work has commenced, and a principal contractor as soon as a client knows enough about the project to select a suitable person. Appointments must be in writing. Until such time as these appointments are made, the client is deemed to fulfil the role.
This means that CDM co-ordinators will have to be appointed in many cases much earlier than planning supervisors have traditionally been appointed.
Clients must take reasonable steps to ensure that parties they appoint are competent to comply with the relevant duties. There will be detailed guidance in the ACOP for assessing competence. No party ought to accept an appointment unless it is competent.
For existing projects the planning supervisor automatically becomes the CDM co-ordinator and the principal contractor remains in place unless different appointments are made. Clients have until 5 April 2008 to check the competence of CDM co-ordinators and principal contractors to comply with the CDM Regulations 2007. CDM co-ordinators and principal contractors have the same time to ensure their own competence.
The CDM co-ordinator
The CDM co-ordinator is placed at the heart of the project to help to ensure co-operation and co-ordination and that all duty holders share the information required by the CDM Regulations.
Its other main role is to advise and assist the client to discharge the client's duties (e.g. advice on assessing competence and on the project management arrangements to be put in place).
The CDM co-ordinator is responsible for preparing (if not done), reviewing and updating the health and safety file and submitting notices of the project to the HSE.
The interaction between CDM co-ordinators and project managers will be a key area to watch developments (in terms of how each role is carried out in practice, respective scopes of service and fees).
The scope of duties is not radically changed, but duties are expressed in clearer terms. The main duty is to design to avoid foreseeable risks to health and safety of any person carrying out construction work or using it post completion. The HSE places emphasis on designers because they tend to be involved from the early to final stages of a project and their initial decisions affect health and safety both during the construction phase and for end use of the structure.
If designers from outwith Great Britain are appointed on a British project, the person commissioning the design is responsible for ensuring compliance with designer's duties. Careful consideration should be given as to how to manage this risk when appointing a foreign designer or off-shoring design work.
Principal contractors and contractors
The HSE did not seek to radically depart from the CDM Regulations 1994, as the feedback was that the principal contractor and contractor provisions worked well.
The focus on the principal contractor is of course to promote health and safety during the construction phase of the project. This requires the principal contractor to co-operate and co-ordinate with others, provide welfare facilities, direct its contractors and to check that suitable site inductions, information and training is given to workers.
The principal contractor will, like the client, have to inform its contractors of the minimum time which will be given for planning and preparation for construction work.
The contractors' duties largely complement those of the principal contractor so that health and safety requirements are observed throughout the contractual chain.
The provisions requiring worker engagement in relation to health and safety matters are also increased in scope.