With less than two months to go before the end of the six month transitional period under the 2015 CDM Regulations, we look at the key changes that were introduced by the regulations and how the principal designer role is being implemented in practice before the deadline of 6 October 2015.
The Construction (Design and Management) Regulations 2015 (CDM 2015) came into force on 6 April 2015. Following industry criticism of the previous 2007 Regulations, one of the intentions of the update was to simplify the CDM Regulations and reduce ‘red tape’. CDM 2015 still sets out what each dutyholder must or should do to comply with the law to ensure projects are carried out in a way that secures health and safety. Guidance from the Health and Safety Executive (HSE) identifies the key elements to securing construction health and safety, which include:
- managing the risks by applying the general principles of prevention
- appointing the right people and the right organisations at the right time
- making sure everyone has the information, instruction, training and supervision they need to carry out their jobs in a way that secures health and safety
- dutyholders cooperating and communicating with each other and coordinating their work
- consulting workers and engaging with them to promote and develop effective measures to secure health, safety and welfare.
The key changes
CDM 2015 applies to all projects including or intending to include construction work (including domestic projects) and includes all planning, design, management or other work involved in a project until the end of the construction phase. CDM 2015 placed increased emphasis on the ‘client’ to ensure that it understands and is aware of its duties. New or modified client duties introduced by CDM 2015 were:
- when appointing a principal designer (and principal contractor), the client must take reasonable steps to satisfy themselves that those who carry out the work have the necessary skills, knowledge, experience and (if relevant) the organisational capability to carry out the work in a way that ensures safety
- notification of the project to the HSE where it is notifiable (construction work scheduled to last longer than 30 working days and have more than 20 works on site at any point, or construction work is scheduled to exceed 500 person days)
- ensure that those appointed can demonstrate appropriate information, instruction, supervision and training
- ensure a construction phase plan is in place prior to works commencing
- appointment of a principal designer and principal contractor (where projects use more than one contractor; for example, one main contractor and one subcontractor)
Importantly, if the client does not comply with this final duty, the client itself takes on the roles and associated legal duties.
One of the most significant changes made by CDM 2015 impacting upon construction procurement and professional team appointments is the abolition of the role of CDM coordinator and the introduction of a new role of principal designer. The main purpose of this change was to ensure the role is more integrated within the design team rather than being a separate consultant with a wholly separate role on the project.
The principal designer must be a ‘designer’ who has control over the pre-construction phase of the project and must create and maintain the health and safety file. ‘Preconstruction phase’ is any period of time during which design or preparatory work is carried out for a project and may continue during the construction phase.
The principal designer will usually be an organisation, although in smaller projects may be an individual that has:
- a technical knowledge of the construction industry relevant to the project
- the understanding and skills to manage and coordinate the pre-construction phase, including any design work carried out after the construction begins
Organisations must have the organisational capability to carry out the role as well as the necessary skills, knowledge and experience that individual designers have.
Unlike the CDM co-ordinator, the principal designer must be a designer. Under the old regulations, clients often appointed the CDM co-ordinator late. The creation of the role of principal designer means that such consultant should be involved from inception of a project and be embedded in the design team at an early stage.
What is happening in the market?
Given the requirement for the principal designer to have control over the pre-construction phase, many believed prior to CDM 2015 that this role would be fulfilled by the architect, who on the majority of projects is the first consultant appointed by the client. Whilst such an appointment may be compliant (as an architect will inevitably be a ‘designer’ as defined under CDM 2015), a designer is anyone who as part of their business either prepares or modifies a design or arranges for or instructs any person under their control to do so. A ‘design’ is widely defined to include specifications, bills of quantities and calculations prepared for the purposes of a design. Therefore, subject to a CDM client being satisfied as to the skills, knowledge, experience and (if relevant) the organisational capability of a consultant, it is quite feasible that a quantity surveying and/or project management practice could be appointed as they too could fall within the definition of a designer.
The HSE did indicate however that the principal designer (and possibly even the client) may feel the need to appoint another organisation (or individual) to carry out some of the tasks previously done by the CDM co-ordinator.
So how do these new requirements translate in practice and how are CDM clients currently interpreting them? We are seeing CDM clients adopt different approaches depending upon their own experience of procuring projects, their corporate health and safety guidance and the need to meet CDM 2015. So far, we have encountered and advised upon considerations and scenarios including:
- if the principal designer is the architect, on novation to a design and build contractor, the client loses its control of this consultant. If the consultant carries out the role negligently and does not provide information to the contractor when needed, it would seem that responsibility for this falls back to the client under CDM 2015. To avoid this, the principal designer duties could be included in a separate non-novated appointment or the design and build contractor could be appointed to fulfil the ongoing principal designer role (as envisaged by JCT Amendment 1 issued in March 2015)
- a principal designer is no longer independent of the contractor once it is novated. The client loses its health and safety “eyes and ears” on the project
- some clients are taking the view that the architect (or other member of the main design team) should not act as principal designer. A different consultant needs to input into the design from a health and safety point of view to both ensure an independent check and balance and to ensure that the design is modified in a practical and cost effective way (if necessary) to reflect any health and safety concerns
- traditional CDM co-ordinators are being engaged as subconsultants to a member of the design team that acts as principal designer
- conversely, CDM co-ordinators are recruiting to their practices to ensure they meet the requirements of a principal designer under CDM 2015
- a design and build contractor is appointed from as principal designer (as envisaged by the revised JCT contract)
- the principal designer role ceases at construction phase as permitted by CDM 2015 and the contractor takes responsibility for ongoing development of the health and safety file
The considerations above are resulting in a varied approach in the market from independent appointments for principal designers to sub-consultancy and sub-contracting arrangements. Ultimately whichever appointment route CDM clients choose, they need to take reasonable steps to satisfy themselves that their principal designer has the skills, knowledge, experience and (if relevant) the organisational capability to perform the role. The overarching duty for a principal designer discharge is to plan, manage and monitor the pre-construction phase and coordinate matters relating to health and safety to ensure that, so far as is reasonably practicable, the project is carried without risks to health or safety.
On new projects the CDM 2015 apply in their entirety and clients should be appointing their principal designers. For those projects that were live with a CDM co-ordinator as at 6 April 2015 the six month transitional period will shortly end and principal designers should be appointed on or before 6 October 2015 to fulfil the relevant statutory role.