The Construction, Design and Management Regulations 2015 (CDM 2015 Regulations) have now been laid before Parliament and are due to come into force on 6 April 2015, ushering in several significant changes to health and safety regulations in Great Britain.
In this client alert, we set out the key changes that anyone working in construction or engineering in Great Britain should be aware of – including transitional arrangements for projects which are already underway, but which will not be completed by the time the CDM 2015 Regulations come into force.
The introduction of the CDM 2015 Regulations is partly due to a desire to simplify health and safety requirements, so that they are easier to understand, particularly given the steer towards client responsibility for health and safety issues (the client being, in this context, the developer/party carrying out works). Another underlying reason for introducing the CDM 2015 Regulations is the government’s aim to more closely reflect the requirements of the Temporary or Mobile Construction Sites Directive (Directive 92/57/ECC), which applies to a wider scope of construction works than the Construction, Design and Management Regulations 2007 (CDM 2007 Regulations).
The CDM co-ordinator is dead, long live the principal designer Once known as the ‘planning supervisor’, then the ‘CDM co-ordinator’ under the CDM 2007 Regulations, the party with primary responsibility for managing health and safety on site will now be known as the ‘principal designer’. Designers have always had duties under each iteration of the CDM Regulations, but now the intention is that one member of the design team (be that an individual or an organisation) will be selected as principal designer to have lead responsibility for co-ordinating matters relating to health and safety during the pre-construction phase. Once construction starts, the principal contractor’s role takes on greater importance, as the principal contractor is responsible for co-ordinating matters relating to health and safety during the construction phase.
While the CDM co-ordinator role was generally most significant in the pre-construction phase under the CDM 2007 Regulations, the CDM 2015 Regulations emphasise that the relationship between the principal designer and the contractor should endure throughout the construction phase, with each being responsible for different, but aligned, aspects of the project. The principal designer is specifically obliged to liaise with the principal contractor for the duration of their appointment.
Furthermore, the principal designer’s role extends to ensuring that, so far as is reasonably practicable, the project is carried out without risks to health and safety and they must ensure that all designers comply with their general duties under the CDM 2015 Regulations. This envisages a greater level of on-going involvement and co-ordination than perhaps some CDM co-ordinators may have become accustomed to under the CDM 2007 Regulations.
The client is obliged, under the new regulations, to appoint a principal designer for any project where there is more than one contractor involved, to have 'control over the pre-construction phase'. If the client fails to appoint a principal designer in these circumstances, statutory liability for the performance of the principal designer’s obligations falls upon the client. Where a project has only one contractor, it may be the case that such contractor will perform the obligations of the principal designer under the CDM 2015 Regulations and the client is under no statutory obligation to appoint a separate principal designer.
The principal designer must, by definition under the CDM 2015 Regulations, be a 'designer' – so whether a contractor (on a project with multiple contractors) can be appointed as principal designer will depend on the particular roles being undertaken.
Some existing CDM co-ordinator practices have suggested that they will be able to fulfil the function of the principal designer once the CDM 2015 Regulations take effect, but this is far from clear. The guidance notes produced by the Health and Safety Executive (HSE) to accompany the draft CDM 2015 Regulations clearly indicate that the principal designer needs to be a designer, and that a designer is someone who prepares or modifies designs (either themselves or through subcontractors). We expect this point to be further clarified before the CDM 2015 Regulations come into force.
Client role strengthened The new regulations see a greater shift towards placing the responsibility for key health and safety issues with the client. Clients are considered best placed to set and enforce the standards, set the tone for a project and to ensure that the relevant health and safety requirements are being maintained and reviewed.
Clients should already be aware of their duties and the consequences of not complying with health and safety requirements, as the concepts are not novel, but this is reinforced by the CDM 2015 Regulations, which reiterate that failure to comply can lead to criminal sanctions.
Under the CDM 2007 Regulations, the CDM co-ordinator is the client’s primary safety adviser in relation to the activities being undertaken on a site. With the removal of this role, clients will become responsible for:
- Notifying the HSE of the project particulars and confirming that they are aware of their duties
- Appointing a principal designer and principal contractor
- Ensuring duty holders comply with their duties under the CDM 2015 Regulations
- Providing the pre-construction information
- Ensuring that the minimum health and safety standards are maintained on site throughout the works
- Ensuring that the construction phase health and safety plan is drawn up by the principal contractor
- Ensuring that a health and safety file is produced by the principal designer
Although in practice the client may delegate certain of these duties, it does, under the CDM 2015 Regulations, remain ‘on the hook’ for compliance.
Several of the client’s duties are on-going, such as the responsibility to ensure that the minimum health and safety standards are maintained on site during the works. As a result, the client cannot simply appoint its principal designer and sit back. The client will need to ensure that, whether by virtue of the services to be provided by the principal designer, or otherwise, there are sufficient arrangements in place to maintain and review the health and safety processes throughout the duration of any project.
Other key changes
- Domestic clients: unlike the CDM 2007 Regulations, there will be no general exclusion for small or domestic construction works or projects. The CDM 2015 Regulations will apply to all ‘clients’ carrying out construction work in Great Britain, including domestic clients. Although the CDM 2015 Regulations will now capture domestic clients, unlike its predecessor, there are simplified provisions for domestic clients and the most onerous of a client’s obligations can be (and, in the absence of a specific appointment, will be) transferred to the contractor or designer that the domestic client appoints. The main impact of this change, therefore, is to extend the application of the health and safety legislation to contractors and designers who work on domestic projects.
- Extension of obligations for non-‘notifiable’ projects: although there is only a marginal change from the CDM 2007 Regulations to the CDM 2015 Regulations as to whether a project is to be notified to the HSE, there is a fundamental difference between the two sets of regulations with regard to non-‘notifiable’ projects. Under the CDM 2007 Regulations, non-‘notifiable’ projects attracted significantly less regulation, with many of the more onerous obligations (including the requirement to appoint a CDM co-ordinator or a principal contractor or to prepare a health and safety file) inapplicable to a project that was not ‘notifiable’. Under the CDM 2015 Regulations, there is no difference in the requirements imposed upon clients whether or not a project is ‘notifiable’, save for the requirement to notify.
- The Approved Code of Practice: this will be abolished and replaced with shorter guidance.
Transitional arrangements The CDM 2015 Regulations come into force on 6 April 2015 and from this date the CDM 2007 Regulations will no longer apply. However, to deal with those projects that will be on-going on 6 April, transitional arrangements will apply until 6 October 2015. Brief details of these arrangements are set out below:
In the interim period before the client appoints the principal designer, the CDM co-ordinator must comply with the duties contained in schedule 4 to the CDM 2015 Regulations. These duties largely reflect the existing CDM co-ordinator requirements under the CDM 2007 Regulations. So, while the CDM co-ordinator’s particular role will not change in the transition period, services schedules forming part of the CDM co-ordinator’s appointment will need to be reviewed to make sure that they are compliant with the CDM 2015 Regulations.
Any relevant documentation prepared in line with the CDM 2007 Regulations (for example, the construction phase plan or health and safety file) will be deemed to satisfy the CDM 2015 Regulations and so does not need to be revisited.
Practical consequences: what do I need to do? As a client, you may be wondering 'so what do I need to think about?' Save for small projects, the CDM 2015 Regulations will not contain anything that fundamentally changes how you may choose to conclude existing projects, or procure new ones. That said, there are some considerations to bear in mind as 6 April approaches.
- No great change in principles: the general health and safety principles have not changed from those set out within the CDM 2007 Regulations. The changes embodied in the CDM 2015 Regulations are largely intended to simplify health and safety practices and take out some of the bureaucracy faced by clients embarking on construction projects. A re-thinking of health and safety strategies is therefore, on the whole, unnecessary, where a client has become adept in operating under the ethos of the CDM 2007 Regulations. Nonetheless, the CDM 2015 Regulations will introduce some procedural and terminology changes which will necessitate changes to documentation requirements when undertaking construction works.
- JCT Contracts: many clients in the UK will regularly use the suite of JCT contracts to procure works. The current 2011 editions of the JCT contracts do not contain provisions to deal with the CDM 2015 Regulations. The JCT have announced that they are working on appropriate updates. However, until a new edition or official amendments are published by the JCT, corresponding schedules of amendments will need to pick up on and deal with the changes. This is something that clients should be aware of, even if they are used to contracting on the basis of the JCT industry forms, without usually seeking amendments to them.
- The professional team: clients should give some thought to how their existing forms of appointment will need to be restructured to reflect the new principal designer role. In practice, this role may be given by the client to the architect, who may then subcontract part of the role to the existing CDM specialist companies who have to date taken on the CDM co-ordinator role.
- 6 April 2015 will be a key date: if clients are in the process of getting documents agreed or signed, with an aim to start on site in or after April, it is important to consider the role of principal designer. If the documents do not currently envisage having one on board, this will need to change.
- Implications for design and build contracts: if a client is procuring works on a design and build basis and is intending to novate the design team, consideration will need to be given to agreeing a separate appointment for one of the existing designers to cover the ‘principal designer’ role, to ensure that there are no gaps leaving the client open to any liabilities that may not be covered under the current suite of appointments. An alternative may be to require that such designer, within the novation agreement, continues to perform the ‘principal designer’ role for the benefit of the client.
- No resting on laurels: on the basis that clients can no longer rely upon the appointment of a suitable and qualified team, it may well be advisable (if not already best practice) to ensure that health and safety remains at the top of any planning or design meeting agenda. Some clients are even considering whistleblowing provisions, requiring each consultant to notify the client in the event of any health or safety concerns.
- Real estate transactions: where works are being carried out at a site where both a landlord and tenant have interests, it may be important to consider at the outset which party has ‘control’ of the works for the purposes of the CDM 2015 Regulations, and so is best placed to make any required notifications and/or be responsible for satisfying the requirements of the CDM 2015 Regulations.
As an added complication, the forthcoming general election may mean that, if the progress of the CDM 2015 Regulations through Parliament is delayed, they may never come into force. In practice, we consider this to be unlikely. The CDM 2015 Regulations are uncontroversial and are likely to receive cross-party support, and the support of whatever government emerges from the May elections, but we would also recommend flexibility in documentation until the complete picture emerges.