Gillian Birkby explains the effect of the new construction design and management regulations, which come into force in April
The construction design and management (CDM) regulations govern the management of health and safety during both the design and construction phases of a project. Currently the CDM co-ordinator assists the developer, in its role as client under the regulations, to carry out its health and safety duties.
On replacing CDM 2007 with CDM 2015, the CDM co-ordinator functions will be phased out. The revised regulations do not provide for a replacement: a new role, that of principal designer, will cover some but not all of these functions. Developers will have more duties under the new regulations.
Main changes
The current functions of the CDM co-ordinator will be split between the new principal designer, the developer and (to a lesser extent) the principal contractor. Currently, only projects that are notifiable to HSE require the appointment of a CDM co-ordinator; under CDM 2015 a principal designer must be appointed whenever a project involves more than one contractor, ie, in almost all cases.
A project must be notified only if it is likely to last longer than 30 working days and involve more than 20 workers on site at the same time, or exceed 500 person days. It will be the client’s duty to notify if appropriate.
Individuals engaged in a construction project that is not in the course of their business will be subject to CDM 2015, and their client duties under the regulations will usually be carried out by either the principal contractor, or the principal designer, if the client has appointed one to carry out those duties.
If a domestic client does not appoint a principal contractor or principal designer, the designer in control of the pre-construction phase will be the principal designer and the contractor in control of the construction phase will be the principal contractor. The “pre-construction phase” includes any period during which design is being carried out, and this will usually extend into the construction period.
Increase in client duties
Currently, developers can manage their health and safety risks by early appointment of a CDM co-ordinator, relying on them to make sure that the client duties are fulfilled. Under CDM 2015 the developer must make suitable arrangements for managing a project, including allocation of sufficient time and other resources, including financial. Arrangements are considered suitable if they ensure that the construction work can be carried out, as far as reasonably practicable, without risks to health and safety, and that the relevant welfare facilities are provided. “Ensure” means that there is an absolute obligation to provide arrangements to this standard.
There are other absolute obligations:
- to ensure that these arrangements are maintained and reviewed throughout the project;
- to provide pre-construction information as soon as possible to every designer and contractor, appointed or being considered for appointment;
- to ensure that a construction phase plan is drawn up before construction starts; and
- to ensure that the principal designer prepares a health and safety file for the project.
Other obligations are not absolute; the developer must take “reasonable steps” to ensure that the principal designer and principal contractor comply with any of their other duties.
The developer takes on these duties unless it appoints a principal designer and principal contractor as soon as possible. They can delegate performance of some of the absolute obligations listed above (though not the liability if they are performed inadequately); the principal designer could be asked to advise the developer, for instance.
Role of the principal designer
The principal designer is “a designer with control over the pre-construction phase” for health and safety purposes. This involves planning, management and monitoring of the pre-construction phase and co-ordination of health and safety during that phase. It includes an absolute obligation to ensure that all designers comply with their obligations under CDM 2015 and that everyone working on the pre-construction phase co-operates with the client, the principal designer and each other. The principal designer must also assist the developer in the provision and distribution of pre-construction information.
Invariably, a lead designer taking on this role needs extra payment to cover the risks involved and the resources required to fulfil the obligations. CDM 2015 is not a cost-saving measure, merely eliminating CDM co-ordinator fees.
The developer could ask the principal designer to perform further duties such as advising on the adequacy of the construction phase plan before work starts on site, and many developers may do so in order to manage their health and safety risk.
However, the developer is required to appoint a competent person as principal designer. Lead designers will not, in most cases, be sufficiently skilled to act as principal designer without assistance, such as from a former CDM co-ordinator.
Timing and transitional period
The new regulations come into force on 6 April 2015 and apply to any project that starts after that date. For projects that have already started before that date and are still ongoing there are two scenarios:
- Work has already started on site but there is no CDM co-ordinator or principal contractor: CDM 2015 will apply.
- A CDM co-ordinator has already been appointed, whether or not work has started on site: the CDM co-ordinator will continue broadly the same functions as before, until a principal designer is appointed (which must be before 6 October 2015) or the project reaches completion, if earlier.
Taking action
For live projects at 6 April 2015, developers must decide with a CDM co-ordinator on a principal designer as from 6 October 2015 at the latest. Developers will also need to check that they are managing their increased health and safety responsibilities effectively and seek advice as required.
Gillian Birkby is head of construction at Fladgate LLP
