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Risk Management
Briefing
April 2015
26 Store Street
London WC1E 7BT
Construction (Design and Management) Regulations 2015
Introduction
As from 6 April 2015, the Construction (Design and Management) (CDM)
Regulations 2007 no longer govern health and safety requirements during
design and construction. New Regulations, the Construction (Design and
Management) (CDM) Regulations 2015, now apply instead. This risk
management briefing looks at how the introduction of CDM 2015 affects
designers in their potential role as Principal Designers, and Clients. There are
various issues:
1.
Duties as Designer
These are largely unchanged from those in CDM 2007.
2.
New role of Principal Designer
The Principal Designer’s functions are similar to, but not the same as, the
former CDM Co-ordinator. He or she must plan, manage, monitor and coordinate health and safety matters during the pre-construction phase. This
phase is defined as the period when planning and preparation takes place,
(e.g. design) and it is recognised that this period could (and usually will) last
into the construction phase. Design by specialist sub-contractors and
variations, for instance, are both covered by the requirements of the preconstruction phase.
The Principal Designer must identify, eliminate or control, so far as is
reasonably practicable, foreseeable risks to the health and safety of any
person. In doing so, there are two requirements which appear to be absolute
obligations – to ensure all designers comply with their duties under the
Regulations, and to ensure that everyone working in relation to the preconstruction phase co-operates with everyone else. The HSE has made it
clear in its guidance, known as L153, that these apparently absolute duties
are subject to the qualification of “so far as is reasonably practicable”; that
phrase also governs the overall obligation to plan, manage and monitor etc.
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So, although the duties of a Principal Designer appear to be much more
onerous than those of the former CDM Co-ordinators, the absolute obligations
to ensure have been modified by the phrase “so far as is reasonably
practicable”. This is a standard commonly imposed in health and safety
legislation, though it has to be said that it is still more onerous than the
standards required of CDM Co-ordinators formerly.
The Principal Designer has no duty to assist the Client in performing the
Client’s functions, except in helping the Client to provide pre-construction
information to those who need it. The Principal Designer is also expected to
provide pre-construction information to designers and contractors, but only so
far as the Principal Designer has that information. There is no obligation to
commission reports or surveys, for instance. That is a duty on the Client.
In addition, the Principal Designer must liaise with the Principal Contractor
and share with him information relevant to planning, management, monitoring
and co-ordination of health and safety during the construction phase.
The Client is required to appoint someone with the relevant “skills, knowledge
and experience” to be the Principal Designer. In many cases the lead
designer will not currently be able to fulfil these criteria, because most lead
designers will not have the in-depth knowledge of health and safety issues
across all the design that, for instance, a good CDM Co-ordinator had.
Although the duties of Principal Designer and CDM Co-ordinator are not the
same, the health and safety expertise of a good CDM Co-ordinator is a useful
standard when considering whether an individual or organisation has the
necessary skills etc. to act as Principal Designer.
Many lead designers are therefore considering engaging a sub-consultant to
perform the Principal Designer role on their behalf, and often the subconsultant will be a former CDM Co-ordinator. If they do so, the lead designer
will still retain both civil and criminal liability for the performance of the
Principal Designer functions, but the responsibility for carrying them out will be
delegated to the sub-consultant.
Because Principal Designers are taking on significant obligations, which are to
some extent more onerous than those of a CDM Co-ordinator, they cannot be
expected to do so without extra payment. The CDM Co-ordinator role is being
phased out, and at the very least the fees formerly allocated to the CDM Coordinator should be available for this purpose.
3.
Extra duties on Clients
A Client is required to make “suitable arrangements” for managing the project
and the Regulations state that these suitable arrangements must include the
allocation of sufficient time and other resources. These “other resources” will
of course include financial resources, e.g. paying for the Principal Designer’s
obligations to be fulfilled.
In addition, arrangements are considered suitable under the Regulations if
they ensure that construction work can be carried out, so far as is reasonably
practicable, without risks to anyone’s health or safety. Not all Clients will be
able to make an informed decision on whether their arrangements are
“suitable”.
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In addition, the responsibility of seeing that the construction phase plan is
prepared before work starts on site now rests with the Client, as well as the
duty to notify the HSE if appropriate. Some Clients are appointing a health
and safety adviser, to advise them on suitable arrangements and the technical
aspects of the draft construction phase plan.
4.
Principal Designer to be appointed on all projects
Except for those projects where there is only one Contractor, a Principal
Designer must be appointed. This means that the majority of projects which
previously fell below the notification threshold will require a Principal Designer
to be appointed. It is extremely rare, in this fragmented industry, for one
Contractor only to be appointed to work on a project, as sub-contracting is so
common.
5.
Domestic projects
Where a project is carried out on behalf of individuals who are not acting in
the course of a business, they will now have duties, which are to be carried
out by the Principal Contractor or, where the Client has expressly appointed a
Principal Designer to carry out the Client duties, then by the Principal
Designer. There is a default position which designers should be aware of; if
the domestic Client does not appoint the Principal Contractor to carry out the
Client duties, the designer in control of the pre-construction phase is deemed
to be the Principal Designer and the Contractor in control of the construction
phase is deemed to be the Principal Contractor, whether they have the
necessary skills, knowledge and experience to fulfil those roles or not.
6.
Projects ongoing at 6 April 2015
If a project had already started on site at 6 April 2015, but no CDM Coordinator had been appointed, usually because the project fell below the
notification threshold, a Principal Designer and Principal Contractor must now
be appointed as soon as possible and CDM 2015 will apply in full as from 6
April 2015.
For a project which is ongoing at 6 April 2015 where a CDM Co-ordinator has
already been appointed, there is a six month transitional period up to
6 October 2015, during which time the Client must appoint a Principal
Designer. As soon as the Client does so, the CDM Co-ordinator’s role will
cease and the Principal Designer’s obligations will apply to the project.
This Risk Liability Briefing is for general guidance only and legal advice
should be sought to cover any particular situation.
This briefing was compiled by Gillian Birkby, Head of Construction at Fladgate LLP on
30/4/2015.
Reproduction of this Risk Management Briefing is encouraged, provided that it is reproduced
unaltered and in full and authorship is acknowledged. This Risk Management Briefing is
available at www.cic.org.uk/liability © Construction Industry Council 2015
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