The Construction (Design and Management) Regulations (CDM Regulations) are intended to ensure that health and safety issues are properly considered during a project’s development, both at the pre-construction and construction phases, so that the risk of harm to those who have to build, use and maintain structures is reduced.
They were introduced in 1994 following publication of European Directive 92/57/EEC on minimum safety and health standards for temporary or mobile construction sites. The CDM Regulations were first revised in 2007 and, a further revision came into force on 6 April 2015. The change from the current CDM 2007 to CDM 2015 is not widely appreciated within the sector and clients may be exposed to sanctions if the new regulations are not complied with in time. Further to our February update on the matter, here is a useful reminder of the key changes now in force.
Changes at a glance:
1. Domestic clients
The new regulations no longer distinguish between domestic and non-domestic clients. This is in an effort to bring the new regulations more in line with the Temporary or Mobile Construction Sites Directive. However, domestic clients will be able to delegate most of their duties to the Principal Designer or the Principal Contractor. Any such agreement would have to be set out in writing.
2. CDM Co-ordinator replaced by Principal Designer
Under the 2007 regulations, the CDM Co-ordinator was an independent consultant tasked with monitoring the overall progress of the project and compliance with the regulations. Under the new regulations, the client will have to appoint a Principal Designer who will have control over the pre-construction phase of a project. The Principal Designer will have to be a designer within the meaning of the new regulations. It is expected that this role will be undertaken by an existing member of the design team or the lead designer on the project, usually the architect.
There has been much debate and speculation within the industry about the ability of designers to discharge their new duties as Principal Designers. The Principal Designer’s duties arguably extend further than those of the CDM Co-ordinator.
Under the new regulations, the client will need to notify the Health and Safety Executive (HSE) of any project exceeding 500 person days or 30 working days with more than 20 workers working simultaneously at any point.
Additionally, any project involving or likely to involve more than one contractor will now trigger the requirement for the appointment of a Principal Designer and a Principal Contractor, regardless of the size of the project.
4. Focused guidance instead of an Approved Code of Practice (ACoP)
The existing legally binding ACoP will be scrapped and replaced by shorter non-binding and targeted guidance.
The duty to ensure competence under the CDM 2007 is replaced. All persons upon whom the CDM 2015 shall apply must ensure that those involved in a construction project have the information, instruction, training and supervision needed to carry out their jobs in a way that secures health and safety.
6. Transitional phase
The CDM 2015 makes provisions for ongoing projects and projects that were started before 6 April 2015. In any event, any project that is to last beyond 6 October 2015 will need to be fully aligned with the CDM 2015 requirements by that date.
In respect of a project which at 6 April had no CDM Co-ordinator or Principal Contractor, the client MAY appoint a designer as Principal Designer and should have appointed a contractor as Principal Contractor by 6 April.
If the client chooses not to appoint a Principal Designer by 6 April 2015, the Principal Contractor will have to prepare, review, update and revise the health and safety file which would otherwise have been prepared by the Principal Designer.
Additionally, the Principal Contractor must draw up a construction phase plan or make arrangements for one to be drawn up as soon as practicable after 6 April 2015. It is the client’s duty to ensure the Principal Contractor complies with this obligation, unless the client is a domestic client.
Importantly, construction phase plans will now be required for all construction projects instead of only notifiable projects.
If the client has failed to appoint a Principal Contractor by 6 April 2015, the client will have to fulfil the Principal Contractor’s duties itself. However, for domestic clients who failed to appoint a Principal Contractor by 6 April 2015, the role will, by default, be attributed to the contractor in charge of the construction phase.
For projects which, immediately before 6 April 2015, already had a CDM Co-ordinator, the appointment of the CDM Co-ordinator will continue to have effect under the CDM 2015 until a Principal Designer is appointed (by 6 October 2015 at the latest) or until the project comes to an end (whichever is the earliest).
If the project is to last beyond 6 October 2015, the client MUST appoint a Principal Designer before that date as the position of CDM Co-ordinator will no longer exist past that point.
If the client fails to appoint a Principal Designer by 6 October 2015, the client will have to fulfil the duties of the Principal Designer on and after 6 October 2015.
Additionally, clients should ensure that CDM Co-ordinators continuing in their duties until 6 October 2015 are aware of their revised duties as those will extend further than their existing ones.
As the CDM Co-ordinator role will no longer exist beyond 6 October 2015, any new CDM Co-ordinator appointments before this time should reflect this. Existing CDM Co-ordinator appointments may not provide for this and clients should consider the implications and potential difficulties of replacing their CDM Co-ordinator with a Principal Designer. For any project having started in the few weeks leading up to 6 April 2015, where a CDM Co-ordinator was appointed, the employer should have retained that person on terms that deal with the termination of their appointment come 6 October 2015.
As the changes have now come into force, clients must update building contracts and any other documents still referring to the CDM 2007.
7. Other transitional points to note
Any pre-construction information, construction phase plan or health and safety file provided pre-6 April 2015 in compliance with the CDM 2007 will be recognised as meeting the requirements of the equivalent provisions in CDM 2015.
A Principal Contractor appointed under the CDM 2007 will be treated, on and after 6 April 2015, as having been appointed under the CDM 2015.
Notification of a project under the CDM 2007 is treated as a notification under the CDM 2015