Don't look back in anger

Martin Howe discusses the changes to the CDM Regulations and the issues they’ve created

The updating of the Construction (Design and Management) Regulations in April 2015 was intended as a straightforward simplification of the previous 2007 Regulations but has turned out to be a major source of uncertainty and debate within the industry.

Consultation on the operation of the 2007 Regulations by the Health and Safety Executive (the body responsible for policing the Regulations) identified a number of shortcomings: most significantly, that the detailed requirements for competence assessment of CDM Coordinators had spawned a multitude of competence assurance systems that were costly, bureaucratic, disproportionately affected smaller organisations and demonstrated little benefit.

The new role of “principal designer”
At the heart of the changes is the replacement of the CDM Coordinator role with that of the “principal designer” (the “principal contractor” role remains, albeit with the removal of the previous competency requirements). Regulation 5 provides that where there is more than one contractor (including subcontractors), or it is reasonably foreseeable that more than one contractor will be working on a project at any time the client must appoint in writing
“(a) a designer with control over the pre-construction phase as principal designer; and
(b) a contractor as principal contractor.”

The appointments must be made “as soon as is practicable, and in any event, before the construction phase begins”.

If the client fails to appoint a principal designer or principal contractor, the client must itself fulfil the relevant duties of each.

Who can act as principal designer?
The HSE Consultation was clear that: “We expect the PD [principal designer] role will be discharged by the person responsible for the design work, which may be a contractor, an architect, an engineer, etc. In practice, little additional work, over and above what is currently expected of a responsible designer will be required by this change”.

This view was not unreasonable – under both the 2007 and 2015 Regulations all designers owe the same duties to design with a view to reducing the risk of health and safety in constructing, maintaining and operating new structures and, as lead designers, they already have responsibilities for co-ordinating the design for a project. All that is added is the obligation to co-ordinate health and safety issues during the preconstruction period.

However, it is fair to say that most architects’ practices have not embraced the change, viewing the principal designer role as imposing significant additional obligations. The Association of Project Safety (APS) – the trade body for former CDM Coordinators – has seized on this reticence and not lost any opportunity to suggest that former CDM Coordinators can act as principal designers, pointing to the HSE confirmation that a “quantity surveyor or anyone who specifies and alters designs as part of their work” can, potentially, be considered to be a designer.

However, regulation 5(1)(a) makes clear that the principal designer is “a designer with control over the pre-construction phase”.

Not many quantity surveyors or former CDM Coordinators, even if they have a limited design role (e.g. in putting together bills of quantities) will have any control over the pre-construction period.

The duties of the principal designer The general duties of the principal designer are summarised in regulation 11(1):

“The principal designer must plan, manage and monitor the pre-construction phase and coordinate matters relating to health and safety during the preconstruction phase to ensure that, so far as is reasonably practicable, the project is carried out without risks to health or safety.”

He must also:

• “ensure all designers comply with their duties in regulation 9”;”
• “ensure all persons working in relation to the pre-construction phase cooperate with the client, the principal designer and each other”;
• “so far as it is within the principal designer’s control”, provide pre-construction information, “promptly and in a convenient form, to every designer and contractor appointed, or being considered for appointment, to the project”;
• “liaise with the principal contractor for the duration of the principal designer’s appointment and share with the principal contractor information relevant to the planning, management and monitoring of the construction phase and the coordination of health and safety matters during the construction phase”; and
• “assist the client in the provision of the pre-construction information required

Some of the above obligations clearly go beyond the role of a lead designer and the reference in the first two bullet points to “ensuring” outcomes contrasts with the equivalent duties on CDM Coordinators under the 2007 Regulations to “take all reasonable steps to ensure”. It is a pity the draughtsman of the new Regulations did not repeat this wording, since, as any lawyer will tell you, it is not normally possible to “ensure” that anyone does anything unless they owe you a direct contractual obligation to do so. However, in practice, if a principal designer has taken all reasonable steps to ensure that other designers have carried out their design taking into account health and safety implications, it is difficult to see the HSE pursuing a principal designer.

Notification of the projects Another important change is that the 2015 Regulations now apply to domestic clients (i.e. any client for whom a project is being carried out not in the course of business) provided the project is expected to:
“(a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or
(b) exceed 500 person days.”

This means that compliance becomes relevant on small domestic projects which were previously exempt.

Importantly, under regulation 7, the role of the client on domestic projects is to be fulfilled by the contractor (on a single contractor project), the principal contractor (on a multiple contractor project) or the principal designer (where he has agreed to do so in writing). This will minimise the burden on domestic clients who cannot reasonably be expected to have the knowledge or experience to carry out their CDM responsibilities. However, small contractors who work on domestic projects will need to ensure they are familiar with the duties of the client because they may be required to fulfil this role.

Don’t look back in anger
Despite the reluctance of architects to embrace the role of principal designer and attempts by former CDM Coordinators to reinvent themselves as principal designers or act as sub-consultants to architects to bolster their understanding of health and safety issues, there is a growing understanding of the new role and an acceptance that health and safety is achieved more successfully by the appliance of common sense that bureaucracy. The bigger risks are for clients who do not take their CDM duties seriously and designers and contractors working on domestic and smaller projects, where historically most health and safety incidents have occurred.

Martin Howe is Consultant Solicitor at Keystone Law. Keystone Law was established in 2002 by a group of forward-thinking lawyers who were determined to build a law firm that would serve the needs of its clients more effectively than the conventional alternatives. Now a full-service law firm with over 200 senior lawyers and 40 support staff, Keystone has won countless industry awards and is considered a significant force within the legal sector.

For more information, please see www.keystonelaw.co.uk