The existing Construction (Design and Management) Regulations 1994 will be replaced by new 2007 regulations on 6 April 2007. Anyone involved in the design or construction of building projects, including works under agreements for lease and licences to alter, whatever the size, will have new duties under the regulations. It will no longer be possible for ‘clients’ under the regulations to assign their duties to agents. Failure to comply is a criminal offence and can lead to prosecution with the penalty of a fine (unlimited) or imprisonment.
Do the new regulations apply to me?
As from 6 April 2007, the new regulations will apply to anyone involved in a building project, including projects which have commenced on site prior to 6 April 2007. The regulations are split into two parts. One part applies to all projects and the other part sets out further regulations applicable to ‘notifiable’ projects. A project is notifiable if it is expected to last more than 30 working days or to involve more than 500 person days. If a project is notifiable then:
- a CDM-co-ordinator, previously referred to as the planning supervisor, and a principal contractor must be appointed (see below for when the appointments must take place which are at a much earlier stage than under the existing regulations);
- stipulated details relating to the project must be provided by the CDM-co-ordinator to the Health and Safety Executive;
- a construction phase plan must be prepared;
- a health and safety file has to be kept.
Difference between the existing and the new regulations
The set up of the regulations remains the same; placing duties on the five key parties to a construction project (client, designer, principal contractor, contractor and CDM-co-ordinator) to ensure a safe working environment on site. The new regulations are more comprehensive and aim to place clearer responsibilities on the parties in an attempt to oblige them to co-operate, share information, reduce bureaucracy and comply with the regulations. The legislators hope that if a duty is breached it will be easier to apportion blame and bring a prosecution.
The client can no longer avoid its responsibilities by appointing and transferring its duties and any liabilities to an agent. A client can still appoint an agent to assist it with compliance with the regulations but liability for any breach of the client responsibilities will remain with the client. That being the case, clients will have to become more actively involved in ensuring a healthy and safe environment on site.
In projects where there is more than one client, for example consortiums or joint ventures, clients can elect in writing that only one will be treated as the client for the purposes of the regulations. Even if an election is made, all clients still have to comply with the common duties. If no election is made they will all be treated as a ‘client’ under the regulations.
The pre-construction health and safety plan has been replaced with a pre-construction information pack and the construction stage health and safety plan with the construction phase plan.
There are some core responsibilities incumbent on every party. Although these existed in the 1994 regulations, they have now been extended and include:
- Co-operation, communication and co-ordination: every party must co-operate and co-ordinate with others involved on site or adjoining sites to ensure the health and safety of all involved or affected by the works.
- Competence: no party may accept an appointment unless he is competent to carry out the role. The client has overall responsibility for checking that all parties, including workers who carry out the construction work, are competent to perform their duties.
- Sharing information: to ensure that the right information is provided to the right person at the right time there are very specific obligations in relation to the provision of information.
The client duties have been extended under the new regulations to ensure the client is actively involved in providing a safe working site. These duties include:
Under the 1994 regulations the client had a duty to be reasonably satisfied that the planning supervisor (now CDM-co-ordinator), contractor and designer were competent. This obligation has been extended under the new regulations to ‘taking reasonable steps to ensure’ that each person is competent.
Appointment of the CDM-co-ordinator
The appointment must take place as soon as practicable after the initial design work or preparation work for construction. This is more definite as to timing, and earlier, than the existing regulations (which require an appointment as soon as the client has such information about the project and the construction work to enable him to ensure the planning supervisor has adequate competence and resources to undertake the role). A designer cannot start work other than initial design work unless the CDM-co-ordinator has been appointed.
Appointment of the principal contractor
There is now a requirement that as soon as the client knows enough about the project to be able to select a suitable person as principal contractor the appointment must be made. It is unclear how this will be interpreted but it may cause difficulties if it is taken to be at an early stage in the project. The client may not be in a position to appoint at an early stage, especially if the appointment is by a tender process or the works are subject to a third party’s (eg a landlord’s) consent.
Managing the project
The client has a new duty to take reasonable steps throughout the project to ensure that the arrangements made for managing the project are suitable and can be carried out without risk to health and safety. The client must also ensure that the welfare facilities, set out in a schedule to the regulations, are provided and are adequate. The schedule is very specific as to what has to be provided and replaces the Construction (Health, Safety and Welfare) Regulations 1996.
Ensuring construction does not start until the principal contractor has prepared a construction phase plan which complies with the regulations
To be compliant, the client must ensure that the construction phase is planned, managed and monitored. It must identify all risks to health and safety and include suitable and sufficient measures to address them.
Ensuring the information in the health and safety file is kept available for inspection and is revised
This obligation is the same as under the existing rules. The duty continues on disposal of the site unless the client has delivered the file to the purchaser and ensured that he is aware of the nature and purpose of the file.
A client will be deemed under the regulations to be a designer if he modifies a design or arranges or instructs any person to do so. If a client instructs the architect (or the principal contractor, for example, during the implementation of the construction works) to amend a design the client will have to comply, as well as the architect, with the design duties set out in the regulations. For any period during which a CDM-co-ordinator or principal contractor has not been appointed, the regulations deem the client to have been appointed to these roles. This is likely to be most problematic at the beginning of a project. If the client fails to make an appointment, believing the regulations do not at that time impose an obligation to do so, then the client itself will be deemed to undertake these roles for the period from when the appointment should have been made to the period when it was actually made. The client will be liable for any breaches even though it is unaware it has these duties.
Principal contractor duties
The obligations of a principal contractor are broadly the same as under the existing regulations. A principal contractor need only be appointed if the project is notifiable. The duties include:
- not accepting the appointment unless it is competent to perform the role;
- planning, managing and monitoring the construction phase to ensure no risk to health and safety;
- preparing, updating, reviewing and implementing the construction phase plan (replacing the construction stage health and safety plan) and identifying and minimising any risks to health and safety;
- identifying for each contractor the information likely to be required for inclusion in the health and safety file and ensuring it is promptly provided;
- ensuring co-operation and consultation with workers.
Under the existing regulations a principal contractor may have also undertaken the role of planning supervisor. Although this is still possible under the new regulations, there is greater potential for a conflict of interest to exist. For this practice to be acceptable to the HSE it is likely that at the very least the person at the principal contractor’s office undertaking the role of CDM-co-ordinator must:
- be sufficiently separate from those undertaking the role of the principal contractor;
- be competent to undertake the role;
- have a clear and independent reporting system with the client. The requirement for the CDM-co-ordinator to confirm that he is competent to perform the role may prevent this practice continuing in the future.
Under the existing rules the duties placed on contractors, which includes sub-contractors, direct contractors and the principal contractor, were limited to co-operating with the principal contractor and providing information. More extensive duties now exist including:
• making the client aware of the contractor’s duties. A contractor cannot carry out construction work unless the client is aware of his duties under the regulations. In practice this may mean insisting on a meeting with the client or sending a letter setting out the obligations and seeking written confirmation from the client of receipt.
- planning, managing and monitoring. There is now a specific obligation on all contractors to plan, manage and monitor construction work carried out by them or under their control to ensure it is carried out without risk to health and safety.
- providing information and training. All contractors must provide to every worker any information or training required for any particular job to be carried out safely. This includes information on site rules, procedures and any identified risks. They must also comply with the requirements regarding the provision of welfare facilities.
- Compliance with regulations 26 to 44 (Part 4 of the regulations). These are more specific duties in relation to certain activities known to be a health and safety risk, such as excavation and demolition.
There are now new additional duties on the contractor where the project is notifiable including:
- promptly providing the principal contractor with any information which might affect health and safety that would justify a review of the construction phase plan or that need be included in the health and safety file.
- ensuring the work is carried out in accordance with the construction phase plan.
From 6 April 2007 the new rules will apply to all projects, even if the project commenced before this date. Agents appointed by the client under the existing regulations may continue in that role, without the client being liable for breaches of the regulations, until 5 April 2012. Key parties will have 12 months without risk of prosecution to assess and ensure their own competence and, where applicable, the competence of others. Anyone undertaking the role of planning supervisor will automatically, on 6 April 2007, convert to the role of CDM-co-ordinator.
You will need tomake amendments to your standard documents. For example reference should now be to the new regulations (Construction (Design and Management) Regulations 2007") and the planning supervisor should be referred to as CDM-co-ordinator. Any provisions purporting to assign responsibilities to an agent will have to be deleted.
A review of your health and safety procedures is necessary to ensure compliance with the new regulations which are much more detailed than their predecessor. The regulations provide a framework within which each party should work. What the regulations cannot do is state exactly what you have to do and when in relation to each activity on site, as this will obviously differ with each site. Each of the five key parties has to decide for itself what specific actions are required to ensure compliance with their duties under the regulations.
An approved code of practice and industry guidance are being prepared by the Construction Industry Advisory Committee to assist in interpretation and provide practical guidance, although the guidance is not expected to be available until May. For more information log on to the HSE website at http://www.hse.gov.uk/. Whether these regulations go far enough to improve health and safety on site remains to be seen