Can you believe it has been five years since the introduction of the most recent version of Construction (Design and Management) Regulations (CDM Regulations) back in April 2007? If you are a party who is involved in construction operations (even those that are minor) or are advising such parties you need to be aware of the duties imposed by these Regulations, which perhaps capture more works (and works at an earlier stage) than parties believe to be the case. A recent report commissioned by the Health and Safety Executive has highlighted the positive effects of the 2007 Regulations but shows there is still work to be done.

The most recent version of the CDM Regulations 2007 came into force on 6 April 2007. The Regulations are supported by an Approved Code of Practice (ACOP) which aims to give practical guidance. The 2007 legislation sought to address the following:

  1. Simplifying and improving clarity (i.e. making it clearer to duty holders what is expected of them);
  2. Maximising the flexibility of the Regulations (to fit with the various procurement and contractual arrangements that exist in the industry);
  3. Encouraging more active management and minimising bureaucracy;
  4. Strengthening the requirements regarding co-ordination and co-operation particularly between designers and contractors; 
  5. Simplifying the assessment of competence.

Successes of the 2007 Regulations

The results of the evaluation are largely positive and show that the 2007 Regulations have gone a long way to meeting their objectives. In particular, a key achievement that should not be underestimated is that the profile of health and safety has been raised within the construction industry. The report notes that respondents have advised that issues that were previously not even raised are now being discussed and considered.

The study has also signalled that parties feel the benefit in complying with the CDM Regulations outweigh the costs. Respondents were asked to rate the overall costs and benefits of CDM Regulations based on their experiences. On balance, responses were positive with 72% rating the benefits as moderate or higher and 82% rating costs as moderate or lower. The Report details some useful information on the average costs to organisations of both introducing CDM Regulations for the first time and maintaining CDM Regulations in the last year.

The report also found that design, management and site practices have improved between 2006 and 2010. All duty holders highlighted improvements in relation to the client, appointing organisations and the commitment to site workers. Principal Contractors and contractors highlighted improvements in risk management on site.

Concerns

The key concerns highlighted in the report are:

  • Interpretation and implementation – whilst respondents were generally comfortable with the Regulations, there are concerns regarding the ACOP’s interpretation and implementation. For example, there can be confusion over who the “client” is for the purposes of the Regulations if there is a complex development structure. It may be the case that the party at the top of the procurement chain does not appoint the professional team as they may not be the best placed to manage the works.
  • Confusion over projects that are not “notifiable” - there was anecdotal evidence that organisations had checked their project against the notification criteria and assumed that because the project was not “notifiable” it followed that the CDM Regulations did not apply. Even if a project is not “notifiable”, it may still be subject to the Regulations and certain duties e.g.an employer has to check the competence and resources of any appointees and a designer has to eliminate hazards and reduce risks during the design.
  • Small organisations - some organisations, particularly those that are smaller, infrequent or one-off participants in construction projects, are not familiar with the 2007 Regulations. As a consequence such organisations are less likely to be aware of their duties and are reliant on advisors or other duty holders pointing them in the right direction.
  • Effects of the current economic climate – there is a concern that, due to economic pressures, developers are minimising costs by appointing duty holders at the last minute. Under the Regulations duties arise as soon as the design process commences, often at a very early stage in a development, and yet it is rare for a CDM Co-ordinator to be engaged at this point in the process. In addition, contractors reported that they are wary of providing significant input at an early stage (as their input may be passed on to the successful tenderer if they are not appointed). Respondents generally felt that price was considered to be more important than competence, and time pressures for completion of works mean there are limited opportunities for co-ordination/co-operation between designers and contractors - it is more about “getting it done”. In the current market contractors, designers and co-ordinators may be unwilling to challenge a developer’s demands which may result in starting work without the appointment of a CDM Co-ordinator or without the required pre-construction information or planning.
  • Generic documentation – respondents felt the amount of generic paperwork being used has not reduced. The purchase and use of generic documents result in paperwork not being relevant to particular projects (often containing details of previous projects). Similarly, contractors advised that there are a number of generic questions being asked in relation to PQQs. It was suggested that a central “approved” repository of competency checks might be useful to reduce costs and improve efficiency.  

Conclusion

Whilst the findings of the report indicate that significant improvements have been made in relation to health and safety since the introduction of the 2007 Regulations, there are still areas of concern. Hopefully, the findings of the report will support policy development in relation to the CDM legislation and allow the Health and Safety Executive to build on the positives that have taken place in the five years since the 2007 Regulations have been in operation.