By now, everyone is familiar with The Construction (Design and Management) Regulations 2015 (“Regulations”). However, there still seems to be confusion as to who should fulfil the role of the Principal Designer (“PD”).
As failure to comply with the Regulations may result in criminal liability, for which the maximum penalty is an unlimited fine or two years’ imprisonment or both, whether you’re building a shopping centre or new housing development or simply fitting out your new premises, there is a significant incentive to get it right.
Here we look at the requirements of the Regulations for this role.
What is the obligation?
Regulation 5 of the Regulations requires the Client to appoint, in writing, “a designer with control over the pre-construction phase as principal designer”. The appointment must be made as soon as practicable and if the client does not appoint a PD it must itself fulfil the PD duties set out in Regulations 11 and 12.
Who is a designer?
The Regulations define a ‘designer’ as “any person… who in the course or furtherance of a business:
a) prepares or modifies a design; or
b) arranges for or instructs any person under their control to do so….”.
According to the HSE, this is sufficiently broad as to include a quantity surveyor who is preparing bills of quantities. However quantity surveyors have typically resisted any suggestion in their appointments that they are a designer for the purposes of the Regulations.
The PD role
The PD must have the “skills, knowledge and experience, and, if they are an organisation, the organisational capability, necessary to fulfil the role that they are appointed to undertake, in a manner that secures the health and safety of any person affected by the project”. There are obligations both on the PD and the client as to selection of the PD:
a) a designer or contractor must not accept appointment as PD unless they fulfil those conditions;
b) the client must take reasonable steps to satisfy themselves the PD fulfils the conditions.
The duties of the PD are set out in Regulation 11 (pre-construction phase) and Regulation 12 (construction phase plan and health and safety file).
Who can act as PD?
The explanatory notes to the Regulations identify the PD as the key role change. It says “The principal designer has a more central role in the project than that of a CDM co-ordinator as they must be a designer with control over the pre-construction phase of the project”.
The HSE’s Guidance throws no real light on who should be the PD, and particularly whether someone other than the lead designer can take this role. Legal commentary generally suggests this as a role for the architect or other lead designer, at least for the pre-construction phase. However, the HSE’s Q&A briefs stress that as long as the PD:
- is a designer, which, as we explained above, can include a quantity surveyor; and
- has control over the pre-construction phase; and
- has the relevant skill, knowledge and experience,
they can be the PD even if they are not a member of the project design team. However, this would not seem to sit very well with a different consultant undertaking the lead designer role.
Some clients are engaging a CDM advisor, as PD, and indeed some PDs are engaging former CDM Co-ordinators as PD Advisor, although there is no concept of a CDM advisor or PD advisor under the Regulations. Whilst this may be helpful, note that the PD cannot delegate its duties and will remain responsible for the performance of the PD role. The HSE Q&A briefs suggest reviewing, in these circumstances, whether the PD does in fact have the required skill, knowledge and experience.
What if the architect is appointed as PD and then novated to the D&B Contractor?
You will see from the comments above that the PD must be appointed by the client. If an architect’s appointment covers its roles both as architect and as PD, and that appointment is novated to the contractor, the PD is no longer appointed by the client. Either a standalone appointment of the architect as PD is required, or the client should consider appointing the contractor as PD for the construction phase, assuming they satisfy the requirements to do so.
The HSE, in their Q&A briefs, have clarified that there can be more than one PD appointed during the life of the project, although there should not be more than one PD at any point in time. Again, the D&B contractor would need to have the relevant skill, knowledge and experience to act as PD.