This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
Summary and implications
With the transitional period now over, and the first anniversary of the Construction (Design and Management) Regulations 2015 (CDM 2015) upon us, we consider the purpose of the Regulations, highlight some top tips for clients, contractors and consultants, investigate industry take-up so far, review the guidance available and look at what the future may hold for the new Regulations.
Why were the 2015 Regulations implemented?
Whilst the CDM 2015 caught many by surprise when they came into force on 6 April 2015, their emergence and replacement of the CDM 2007 came against a backdrop of health and safety legislation review. Professor Löfstedt’s government report (published in November 2011) identified the CDM 2007 as requiring change and, in 2013, Professor Löfstedt’s progress report set out a number of measures being considered to simplify the 2007 Regulations. In March 2014 the government launched a consultation on its proposed changes to the 2007 Regulations including – to some raised eyebrows – abolishing the role of CDM Co-ordinator and replacing it with a new ‘Principal Designer’ position.
The government’s view was that the Principal Designer would be a central figure; a designer appointed early and with control over the design process. It would have the ability to implement health and safety safeguards and effect change, whereas the CDM Co-ordinator tended to be appointed late and had been restricted to the periphery, on the fringes of a construction project’s design team.
Another key proposal was to change the trigger for appointing a Principal Designer. Whereas a CDM Co-ordinator was required only on ‘notifiable’ projects, a Principal Designer would need to be appointed in writing in much wider circumstances:- i.e. whenever it was anticipated that more than one contractor would be involved.
The CDM 2015 would also be ‘simplified’; the capacity of clients, contractors and consultants to comply with the Regulations would not be measured by reference to specific assessments but, instead, the onus would be placed on each organisation to ensure that it has the skills, knowledge, experience and organisational capability to fulfil its obligations.
When the CDM 2015 came into force (incorporating the aforesaid proposals), a six-month transitional period until 6 October 2015 was allowed during which time projects that had begun before 6 April 2015 and where CDM Co-ordinators had already been appointed in writing could rely upon revised 2007 provisions.
The transitional period is now over and the CDM 2015 are in full swing. This guidance focuses on projects where a Principal Designer is required (i.e. where more than one contractor (including sub-contractors) is anticipated), and notifiable projects (i.e. projects either lasting more than 30 working days with more than 20 workers working at the same time, or exceeding 500 person days), which will include the majority of commercial construction projects. Where a project concerns rail or nuclear work, references to (and notification to) the Health and Safety Executive (HSE) should instead be to the Office of Rail and Road or the Office for Nuclear Regulation (as applicable).
The CDM 2015 in practice – top tips for Clients, Principal Contractors and Principal Designers
Some of the most important points for parties to a construction project to remember in respect of notifiable projects with at least one contractor are:-
Client
- under the CDM 2007, a CDM Co-ordinator was required to notify the HSE. Under the CDM 2015, the Client is responsible for notifying the HSE. The Client can ask another party to carry out notification on its behalf, but this will not stop the Client being responsible by law (and the F10 notification form does not presently allow any party other than the Client to be named as the notifier);
- the Client must appoint a Principal Contractor in writing before any construction work begins. If the Client fails to do so, the Client will take on the Principal Contractor's roles, responsibilities and threats of sanctions;
- the appointment of a Principal Designer should be one of the first appointments a Client makes. Whilst the CDM 2015 require that the appointment be made before construction work begins, the HSE advise that the Principal Designer should be appointed "as early as possible in the design process, if practicable at the concept stage". If the Client fails to appoint a Principal Designer, the Client will take on the Principal Designer's roles, responsibilities and threats of sanctions;
- under the CDM 2015, the onus is on the Client to be much more hands-on and proactive in managing (and providing health and safety information to) the consultants and contractors. For example, the Client is required to "ensure" that the Principal Contractor produces the construction phase plan and to "ensure" that the Principal Designer produces the health and safety file (and both documents must be produced before a spade is in the ground);
- the definition of 'Client' is wide ("any person for whom a project is carried out") and there can be more than one Client on a project. The definition would capture, for example, a funder that provides detailed instructions to a designer, or a development manager instructing contractors despite not being a party to any building contract. Unless a Client wants to take on the statutory responsibilities and risks that come with the position, the 'Clients' must agree in writing that one of them will take on the role (the others will still need to cooperative and provide information, but the onerous duties will fall upon the elected Client);
Principal Contractor
- the Principal Contractor must produce the construction phase plan before any construction work begins and before the site is assembled. The construction phase plan must set out health and safety rules, contain specific measures in respect of any risks falling within Schedule 3 of the Regulations, and be revised throughout the project;
- if the Principal Designer's appointment concludes before the end of a project ('project' usually being defined as ending on practical completion), the Principal Contractor must take on the health and safety file, keep it up-to-date, and pass it to the Client at the end of the project. In such instances the Principal Contractor should consider whether completing the health and safety file constitutes a change under the building contract entitling it to time and/or money;
- in a design and build scenario where the Principal Contractor is the main contractor, if the building contract appoints the Principal Contractor as the Principal Designer it is commonplace for the consultant previously appointed as Principal Designer to be novated from the Employer to the Principal Contractor. However, the Principal Contractor must be aware that such a novation is almost irrelevant in the eyes of the CDM 2015; it would be the Principal Contractor that becomes the Principal Designer and has the responsibilities – and penalties for non-compliance – that entail. A dual Principal Contractor / Principal Designer therefore needs to ensure that it manages any sub-contracted services effectively, and that – where possible – it is involved in the negotiation of the Principal Designer's pre-novation appointment in order that it can ensure the appointment contains the necessary contractual guarantees ahead of the appointment's novation to the Principal Contractor;
Principal Designer
- the Principal Designer must produce the health and safety file (electronic or hard copy) during the pre-construction phase, keep it up-to-date throughout the project, and pass it to the Client at the end of the project (or pass it to the Principal Contractor where the Principal Designer's appointment finishes before the project completes);
- before accepting the appointment, the prospective Principal Designer should satisfy itself that it will join the project early enough in order to enable it to discharge its duties, such as planning, managing and monitoring the pre-construction phase and the construction phase plan, ingratiating itself into the design team, and implementing the 'principles of prevention' detailed at Schedule 1 of the Management of Health and Safety at Work Regulations 1999;
- the CDM 2015 are clear that the Principal Designer must reject an appointment unless it has the skills, knowledge, experience and organisational capacity to fulfil the role properly. A Principal Designer may buy-in suitable knowledge to plug any gaps but, should any duties be sub-contracted, the Principal Designer must remember that it will remain wholly responsible for its sub-consultant's performance.
Industry take-up
Enthusiasm for the CDM 2015 has been muted. Concerns were raised as to whether the new Regulations were necessary, whether architects and other likely candidates for the Principal Designer role had been given enough notice to reorganise their business structures and retrain their personnel, whether the Regulations and the guidance available was sufficient to allow all parties to identify their roles and the practical measures they should take to perform those roles, and whether costs (such as professional indemnity insurance premiums) would raise and bureaucratic requirements (such as appointments by Clients of bespoke 'CDM advisors' in order to help Clients discharge their more burdensome responsibilities) would increase.
Arguably the most common method of procuring Principal Designer services (whether in design and build or traditional construction) is in architects taking on the role but sub-contracting their Principal Designer duties to former CDM Co-ordinators. This is often a reluctant arrangement on the part of architects (not least because it does not relieve an architect of a designation as Principal Designer). In addition, there are doubts as to whether this procurement solution achieves the aims of those behind the CDM 2015 as the following questions are posed:-
- where sub-consultants are tasked with carrying out the duties of Principal Designers, are their recommendations implemented by Principal Designers and others?
- are those sub-consultants carrying out Principal Designer duties embedded in the design team with real control over design development, or has the pack simply been shuffled with the sub-consultant a peripheral advisor?
- do the CDM 2015 make much practical difference?
- does the multiplicity of CDM-related consultants (one project may have a Principal Designer, a CDM advisor to the Client, and an advisor to the Principal Designer) really assist the overall objective or does it result in fragmentation of responsibility?
Another common method of employing a Principal Designer is simply appointing a former CDM Co-ordinator as a Principal Designer. However, notwithstanding the new scope of services, the Client must consider whether the consultant satisfies the requirement that the Principal Designer be "a designer with control over the pre-construction phase".
Other popular approaches include the Client taking on the Principal Designer role (in which case the Client must be confident it has the organisational capacity, skills and experience to deal with the role and is willing to take on the risks of non-compliance) or the Principal Contractor taking on the role as Principal Designer (although if the appointment is made upon execution of the building contract, there may well be a gap in coverage prior to that date during which period the Client would be deemed to have been the Principal Designer).
HSE decides - no 'Approved Code of Practice' for the CDM 2015
The CDM 2007 were supported by the HSE's approved code of practice, which signposted dutyholders towards compliance with the Regulations through specifying practical measures that should be taken.
However, the HSE decided to proceed without an approved code of practice for the CDM 2015, instead relying upon its 'Legal Series' guidance such as 'Managing Health and Safety in Construction'. The government's 2014 consultation revealed some resistance to this decision and, as a consequence, it was expected that the HSE would publish an approved code of practice for the CDM 2015.
Nevertheless, following the HSE's Construction Industry Advisory Committee meeting in November 2015, the HSE seem to have decided that there will not be a formalistic approved code of practice for the CDM 2015, and that their published guidance is sufficient as the courts "regard ACOPs and guidance as having the same standing". The HSE's 'Managing Health and Safety in Construction' is therefore the most authoritative guidance available on the CDM 2015.
The future of the CDM 2015
The CDM 2015 may be one year old, but the construction industry is still finding its feet in incorporating the new role of Principal Designer and the onus upon design change that the Regulations bring. We are still in the 'bedding in' phase of the new Regulations, and it may be too early to draw firm conclusions on the efficacy of the CDM 2015.
Whilst the aims in introducing the CDM 2015 included simplifying health and safety bureaucracy and reducing cost, the Regulations are a significant shift in emphasis intended to bring health and safety thinking to the heart of the design team, and were introduced with relatively short notice. It is therefore unsurprising that the industry is incurring a short-term cost – both in terms of time and money – in achieving familiarisation with the changes.
However, it is clear that the central aim of the CDM 2015 is worthwhile:- to effect change to design in order to improve the UK's already admirable health and safety record in construction. It is likely that once the CDM 2015 reaches its second birthday in April 2017, the industry will be much more comfortable with procuring compliance with the Regulations and, as a result, the practical benefits of the CDM 2015 will come to fruition.
For further information on the CDM Regulations or if you have any construction enquiry please contact Sean Banks.
