George Markland explains the new Construction (Design and Management) Regulations and sets out developers’ obligations under the Health and Safety at Work etc Act.
On March 31 1995 the Construction (Design and Management) Regulations 1994 came into effect under the regulatory framework of the Health and Safety at Work etc Act 1974. The regulations impose legal obligations on the construction team, with attendant penalties for noncompliance. In many cases these obligations are not new, but were previously duties of care rather than specified legal requirements.
The regulations relate to all construction work which includes demolition, construction, alteration, fitting-out, commissioning, repair, maintenance and decoration.
Why has CDM been imposed?
Although the accident record in the UK construction industry is among the best in Europe, it is still unacceptable. The Health & Safety Executive has been working for several years to develop and implement further regulations, but, ironically, the final impetus to achieve this arose from the European Community Construction Sites Directive. Statistically, construction site workers have a 1 in 300 chance of being killed at work, which is five times more likely than factory workers. About half of all fatalities on construction sites are caused by falls from a height, and a further quarter or so result from workers being trapped by something collapsing or overturning.
What does CDM seek to achieve?
The CDM regulations are a creditable attempt by the HSE to improve health and safety. There must be many reasons for the poor accident record in the construction industry, and these would include the varying work locations, stages and conditions, the varying workers themselves, the diversity and sometimes conflict of concurrent processes, the pressures of time and cost and the difficulties of training and managing in these conditions.
There have been increasing efforts in recent years to reduce accidents, mostly directed at operations on construction sites. While this theme is developed further by CDM in requiring improved management, information and co-ordination of work on the site, the regulations have opened up two further fronts:
- Provision of adequate resources and time by the client.
- Proper consideration by designers at the design stage, of the risks inherent in constructing and subsequently maintaining their design.
Does CDM apply to your project?
Almost certainly, yes. There are no exemptions for demolition work or for the duties of designers. However, the obligations to appoint a planning supervisor and principal contractor do not apply to projects which are for private domestic clients, nor to small projects where the construction phase:
- lasts 30 days or less;
- occupies 500 person days or less;
- employs less than five persons at one time.
In general, property development is subject to CDM, as is any maintenance work which exceeds the above criteria.
What about current projects?
The regulations include the following transitional provisions, amplified in HSE Construction Information Sheet Number 38:
- If the construction phase commenced before March 31 1995, then the client is obliged to appoint a planning supervisor and principal contractor by January 1 1996 (unless practical completion is achieved before this date), and the client is not obliged to provide information regarding the condition of any existing premises or site affected by the project.
- If construction did not commence before March 31 1995 and the client has sufficient information to appoint a planning supervisor or a principal contractor but has not done so, then these appointments must be made as soon as is practicable.
- If notice of construction work was given to the Health & Safety Executive in accordance with section 127(6) of the Factories Act 1961 before March 31 1995, then no further notification is necessary under the CDM regulations.
- If construction commences before August 1 1995 then the client’s obligation to ensure that a health and safety plan is in place before commencement of construction does not apply.
- If the design phase commenced before March 31 1995 then the duties of the designer, and the design-related duties of the planning supervisor, do not apply until August 1 1995. Further clarification is needed from HSE as to whether these design-related duties apply to those parts of designs which were completed before March 31 1995 or only to design work carried out after that date. It would appear to be reasonable to review design work completed prior to March 31 1995 but not to be constructed prior to August 1 1995, for compliance with current CDM standards. Any desirable changes to completed design work would have to be balanced against the potential consequences for the project.
Your project health and safety plan
It is important that the client ensures that a complete and satisfactory health and safety plan is produced before construction commences. The health and safety plan is made up of two parts, covering the pre-construction stage and the construction stage.
The regulations require the planning supervisor to ensure that a pre-construction health and safety plan is included in the tender documentation for procurement of construction. Usually, the planning supervisor is instructed by the client to compile this plan based on input from the client and designers.
If you, as the client, require the planning supervisor to produce the document, then this must be clearly stated in the terms of the appointment.
The pre-construction health and safety plan forms part of the terms of appointment of the principal contractor, who then develops and extends this by the addition of a construction stage health and safety plan.
Relevant parts of the health and safety plan then form part of the tender documents for the appointment of any other contractors, and the plan is the basic health and safety standard and control document for all design and construction work related to the project.
Your health and safety file
The health and safety file for the project contains all health and safety-related information which is necessary for the proper maintenance, repair, alteration, decoration and demolition of the building. The main contents are record drawings and operation and maintenance manuals for building services, and the structure and the architectural fabric, including any fit-out.
These documents are issued by the designers and principal contractor, and the planning supervisor must ensure that the health and safety file is properly collated during design and construction and then handed over to the client on completion of the project.
The planning supervisor may be appointed to collate the documents provided by others and produce the file, but this service, if required, must be agreed at the time of appointment, along with the required number of copies and the format, eg paper or CD-ROM.
Any delay in the provision of information by the designers and principal contractor could affect the date of practical completion. However, the HSE acknowledges that some information may have to be collated and passed to the client as soon as reasonably practicable after occupation of the building.
The availability of the health and safety file is likely to have implications on the liquidity and value of a building.
This could filter through to older buildings whose owners or potential purchasers may feel that a survey and the production of a health and safety file is a worthwhile investment to ensure that sufficient information is available for safe continuing maintenance in the future, and to avoid any potential increase in the difference in value between new and secondhand space. The market may also consider that some existing buildings might benefit from modification if their standards of maintenance efficiency and safety differ from those in buildings designed and built under CDM.
Your budget
It has been suggested that the regulations will have no effect on resources, cost, time or bureaucracy because they impose no duties which are fundamentally new. This would appear to be unrealistic because fees will be influenced by the following:
- The appointment of a planning supervisor is a new and additional requirement, and therefore an extra cost. Fee benchmarks are not yet established, and it may be appropriate for planning supervisors to be appointed on a time charge basis or a fixed lump sum derived from a pre-estimated number of hours. It is also said that some consultants are prepared to provide the service free of charge; however, this would appear to be illegal, as clients must satisfy themselves that the planning supervisor will apply adequate resources to the task.
- Designers are generally required to carry out more detailed and structured risk assessments than they would normally have done before CDM.
- Principal contractors and contractors are now required to produce more rigorous risk assessments and method statements.
- All members of the project team are potentially liable in case of fatal or serious injury, and this increases financial risk and insurance costs.
- Because of the apparent shared responsibility, there are additional costs resulting from duplication of effort.
Your project team
Leading designers and contractors are taking steps to ensure that they can carry out the duties imposed by the regulations. Clients will employ consultants on the same basis as they have always done, but must make reasonable inquiries to ensure that their consultants have appropriate training and experience in their specialist discipline and in relevant health and safety considerations.
Professional institutions related to the construction industry are assessing the implications of CDM for members and are providing some guidance. The RIBA has initiated a Register of Planning Supervisors, and two new organisations have been established in response to the regulations. However, the HSE has stated that it would prefer existing professions to assimilate the necessary health and safety expertise rather than see a new specialist profession emerge.
Your guidance
The HSE has published some useful guidance documents listed in a booklet, CDM Regulations, obtainable free of charge from HSE Books (01787 881165) and seven guidance notes, Construction Sheets 38 to 44, obtainable free of charge from HSE area offices. CIRIA has published an interim report, No 145, Case Study Guidance for Designers.
ACE and RIBA have published forms of appointment as planning supervisor; however, other forms exist and yet more will follow.
Your objective
The HSE and contributors from the construction industry are to be commended on this attempt to improve construction safety, where the UK is probably leading the European Community, while many of our partners opt out!
Professional developers will wish to play their part by ensuring that their projects give due regard to all factors in the complex equation:
Property Development =
Quality + Function + Cost + Time + Health & Safety.
Not necessarily in that order.
- See “Mainly for Students”
