The Construction (Design and Management) Regulations 2007 are due to be revised with changes expected to come into force in April 2015.
The original CDM Regulations were introduced in 1994 (coming into force in March 1995) to improve health and safety on construction projects. Criticisms of the 1994 Regulations culminated in their replacement by the 2007 Regulations on 6 April 2007.
The 2007 Regulations have arguably always been something of a stop gap measure. They were introduced on the basis that the Health and Safety Executive (HSE) would monitor and evaluate their operation with a view to replacement legislation being made should the need arise. Since their introduction, the Regulations have been criticised for being overly complicated and this criticism when coupled with the political drive against a bureaucratic health and safety culture and the Government Red Tape Challenge has meant that some form of revision was always more likely than not.
In 2011, it was announced that the 2007 Regulations would be revised. Following a March 2014 consultation with HSE Board consideration of consultation responses in August 2014, it was announced that revised Regulations would come into force in April 2015.
The key changes
Key changes to the 2007 Regulations include the following:
- Simplification of the Regulations to incorporate a structure that follows project process.
- Simplification of the Approved Code of Practice (ACoP).
- Abolishing the role of "CDM Co-ordinator" and introducing the new role of "Principal Designer".
- Abolishing the domestic client exemption.
- Raising the project notification threshold.
- Requiring written construction phase plans for all construction projects.
Set out below are some thoughts on the changes and what they may mean in practice:
- A simpler ACoP: The shorter and simplified ACoP is to be welcomed particularly as it is to be accompanied by HSE and industry guidance, tailored to all levels of knowledge. Added clarity should hopefully encourage greater compliance. However, do bear in mind that the current ACoP will fall away in 2015 and so there will be an interim period when the revised Regulations will be supported by HSE and industry guidance alone.
- The new "Principal Designer": The replacement of the CDM Co-ordinator role with that of "Principal Designer" is a major change. The idea behind the change is that the Principal Designer should already be a member of the project team however, there is a question over whether designers will be able to comfortably take on additional health and safety duties in addition to their normal role. Could this change prompt a shadow industry of sorts where designers appointed to this function subcontract this role to third parties? Such subcontracting could reduce the impact of this change and have cost and time implications (not to mention additional contractual implications to ensure the client is protected in the event of such subcontracting). A further question is what impact this will have on those who currently carry out the duties of CDM Co-ordinators? Finally, care will need to be taken that construction contracts and related real estate agreements reflect the new role and use the correct terminology.
- The removal of the domestic client exemption: The removal of the domestic client exemption appears to be a major change at first sight but it may not have as much impact in practice. This is because the intention is that there will be a default position that the domestic client's duties will be assumed by the principal contractor. Contracts will need to be drafted to ensure that this delegation of duties is made clear. In addition, this change does raise the question of what impact these additional duties will have on contract price for small domestic projects?
- Raising the notification requirements: The requirement to notify the HSE about projects expected to last more than 30 days or involve more than 500 person-days of labour, will be replaced by a requirement to notify projects involving "more than 30 working days and more than 20 workers simultaneously". This should reduce the number of notifiable projects by almost half, although the removal of the domestic client exemption means domestic projects are now potentially notifiable. Additional care will need to be taken at the outset of projects to identify whether they are notifiable.
- Written construction phase plans now required for all construction projects: Health and safety plans are currently required only for notifiable projects but this now will change and written construction phase plans will be needed for all construction projects. This will probably have little impact on large sites but may mean additional work on small projects where such detail has not been required to date. This could lead to increased time and cost.