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The Construction (Design and Management) Regulations 2015: Know What You Don’t Know

The Construction (Design and Management) Regulations 2015: Know What You Don’t Know

Hold on to your hard hats! The legal landscape in the construction sector is facing some major excavation after the Construction (Design and Management) Regulations (“CDM”) 2015 hit the ground yesterday (6th April).

The new Regulations do not at present have an accompanying HSE Approved Code of Practice (ACoP) but there are suites of Guidance available from the HSE and CITB. As of 6th April the application of the 2007 CDM Regulations (and corresponding ACoP) will cease. Well, almost. There are a number of transitional arrangements, in play until 6th October 2015 at the latest, covering projects which are already underway. For those that began before 6th April, if the construction phase has not yet started and a CDM Co-ordinator (CDM-C) has not yet been appointed, a Principal Designer (PD) will need to be appointed in writing by the Client.

Much has been made of the ousting of the CDM-C by the new PD role, with the planning, managing and monitoring of the pre-construction phase (including co-ordination of health and safety risk management) accordingly now being handled by an existing member of the design team. The new Regulations specifically provide that the pre-construction phase covers periods of design or preparatory work carried out for a project “and may continue during the construction phase”.

As we have already cautioned in a previous blog, substituting the CDM-C for a PD is more than just a change of name (or acronym). Under CDM 2015, the Principal Designer must be exactly that: a designer, defined as anyone who “prepares or modifies a design; or arranges for, or instructs, any person under their control to do so”. It is not business as usual for those who were CDM Co-ordinators. There can be only one PD on a project at any given time (and the Client must assume the role if they fail to appoint one). Those appointed as PD may in reality seek advice on, or sub-contract performance of, the health and safety aspects of their role to an external consultant. However, liability will generally still rest with the PD.

Significantly, CDM 2015 makes no explicit reference to “competence” unlike CDM 2007. The new Regulations are, however, quite clear that any designer (including a PD) or contractor must not accept an appointment to a project unless they have “the necessary skills, knowledge, experience and, if they are an organisation, organisational capability” to perform that role in a way which secures the health and safety of everyone affected by the project. Not only that, but anyone responsible for appointing any designer or contractor must take reasonable steps to ensure such capability. Some may see all of this as not quite failing to “call a spade a spade” as regards a need for “competence”, but rather opting to call a spade a “spatulous device for abrading the surface of the soil” (to quote satirist Joseph Devlin). With many architects targeting the role of PD, the ability to identify and control foreseeable risks to the health and safety of everyone involved, including those who will be cleaning, maintaining or working in the completed building, is not something which all architects may believe they possess. A lack of capability may point to a need for more training, more resources, or higher quality instruction or supervision. It may mean taking advice from a consultant. But it could also mean refusing to accept the appointment as PD in the first place.

A big part of getting to grips with the changes is understanding who needs to know what, and when. The designers must now keep one eye on the construction phase, and beyond. The Principal Contractor, with their new legal duty to consult and engage with workers, also has enlarged “to do” and “to know” lists. When contractors employ or control people working on site, they must ensure workers have the necessary skills, knowledge, training and experience, are properly supervised, given clear instructions, and have the right materials to do the job properly and safely. And what about the Client, who now wields more responsibility for the work done in their name? The onus is on the Client (now stripped of their CDM-C) to promote, and maintain, a robust health and safety culture throughout the project.

Being in breach of the CDM Regulations is a criminal offence. There is the added risk of an HSE Fee for Intervention invoice for a material breach of health and safety law landing on your desk. Burying your head in the sand (an inherently unsafe practice, and it messes up your hair) won’t suffice. Delegating the performance of CDM duties will not delegate health and safety responsibility when things go wrong. So know what you don’t know. Because if you don’t know what you don’t know, or what those below you don’t know, and the HSE knows you don’t know, then who knows what sanction you could end up with? 12 months in prison? A £20,000 fine? A fine into the millions if the breach leads to a fatality? Then you certainly will know about it.

Adam McCabe
Solicitor

LChalmers