On 6 April 2015 the new Construction (Design and Management) Regulations 2015 (“CDM 2015”) came into force. The regulations replace the CDM 2007 and make widespread changes to health and safety legislation affecting construction and engineering projects. It’s therefore important for those involved in construction projects to be aware of the key provisions:
CDM 2015 applies to all construction work in Great Britain, including small projects and domestic projects.
CDM 2015 applies to domestic clients (i.e. those “for whom a project is being carried out which is not in the course or furtherance of a business of that client”). CDM 2015 automatically passes most of domestic client’s duties onto other parties – it is therefore important for contractors and designers to understand when these duties will fall upon them when dealing with domestic clients.
Perhaps the most fundamental change is the abolition of the role of the CDM co-ordinator. The Regulations address the roles of “client”, “principal contractor”, “principal designer”, “contractor” and “designer”.
Parties may wear more than one hat under the CDM 2015. For example, the principal contractor may also be the designer and a client may also be a contractor. The definitions of each role are wide so it is important parties are familiar with them to understand which duties will apply to them in any given scenario.
The “principal designer” and “principal contractor” roles apply where there is more than one contractor or it is reasonably foreseeable that more than one contractor will be working on the project at any time. The wide definition of contractor (which will include sub-contractors) means it will be rare in commercial projects for the principal designer and principal contractor appointment obligations not to be triggered. On projects where these obligations are triggered, the appointments must be made by the client in writing as soon as is practicable and, in any event, before the construction phase begins.
A “designer” means “any person (including a client, contractor or other person referred to in these Regulations) who in the course or furtherance of a business (a) prepares or modifies a design; or (b) arranges for, or instructs, any person under their control to do so, relating to a structure, or to a product or mechanical or electrical system intended for a particular structure…”.
It is important to note that “design” includes “drawings, design details, specifications and bills of quantities (including specification of articles or substances) relating to a structure, and calculations prepared for the purpose of a design.” A quantity surveyor may therefore be a designer, and have responsibilities under the CDM2015, if it prepares a bill of quantities.
A “contractor” means “any person (including a non-domestic client) who, in the course or furtherance of a business, carries out, manages or controls construction work”.
Careful scrutiny of the CDM 2015 is required to understand all the duties and obligations but a summary of some of the key requirements is set out here.
Contractors and designers must not carry out construction work unless satisfied that the client is aware of the duties they owe under the CDM 2015.
Contractors and designers must also not accept appointments if they do not have the skills, knowledge and experience, and if they are an organisation the organisational capability, to fulfil their role in a manner that secures the health and safety of any person affected by the project. Those responsible for appointing designers and contractors must take reasonable steps to satisfy themselves that the designer or contractor has those skills and capabilities.
- Responsible for planning, managing and monitoring the pre-construction phase and co-ordinating health and safety matters to ensure that, so far as reasonably practicable, the project is carried out without risks to health and safety.
- Must assist the principal contractor in preparing the construction phase plan by providing all the information the principal designer holds relevant to the construction phase plan.
- Must prepare, during the pre-construction phase, a health and safety file and ensure it is appropriately reviewed, updated and revised from time to time.
- Has to take into account when preparing/modifying a design, the general principles of prevention and any pre-construction information to eliminate, so far as reasonably practicable, foreseeable risks to the health and safety of any person carrying out or liable to be affected by construction work, maintaining or cleaning a structure or using a structure designed as a work place.
- Where it is not possible to eliminate risks, the designer must, as far as is reasonably practicable, take steps to reduce or, if not possible, to control risks through the design process, provide information about the risks to the principal designer and ensure appropriate information is contained in the health and safety file.
- Responsible for drawing up a construction phase plan or making arrangements for it to be drawn up (assisted by the principal designer). This must be done during the pre-construction phase and before setting up a construction site. The principal contractor must then review, update and revise the plan from time to time.
- Responsible for planning, managing and monitoring the construction phase and co-ordinating health and safety during the construction phase to ensure that, so far as it’s reasonably practicable, construction work is carried out without risk to health and safety.
- Also responsible for providing site inductions, preventing access by unauthorised persons and ensuring appropriate facilities are provided.
- Required to plan, manage and monitor construction work carried out either by the contractor or by workers under its control, to ensure that, so far as is reasonably practicable, it is carried out without risks to health and safety.
- Where there is more than one contractor, must comply with any directions given by the principal contractor or principal designer and the parts of the construction phase plan relevant to its work.
- Responsible for drawing up the construction phase plan or making arrangements for it to be drawn up, as soon as practicable prior to setting up the construction site if there is only one contractor.
- Must not employ persons to work on site unless they have or are in the process of obtaining skills, knowledge, training and experience to carry out the tasks in a manner that secures the health and safety of any person working on site.
- Must also provide appropriate supervision to workers under their control including providing a suitable site induction (where not already provided by the principal contractor) and information on the procedures to be followed in the event of serious and imminent danger to health and safety.
The client is now responsible for notification to the HSE. A project is notifiable if the construction work on the construction site is scheduled to last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project or exceed 500 person days. There are separate notification provisions for rail and nuclear projects.
The new regulations came into force on 6 April 2015 and revoked the CDM 2007 but there are transitional provisions for projects which are already under way.
The transitional provisions which will apply will depend on whether there is already a CDM co-ordinator or principal contractor appointed. In summary:-
On an existing project without an existing CDM co-ordinator or principal contractor but where there is more than one contractor or it is reasonably foreseeable there will be, and the construction phase has started, the client must appoint in writing a contractor as principal contractor as soon as is practicable. The client may also appoint a principal designer but is not obliged to do so. The principal contractor then has to draw up the construction phase plan as soon as is practicable. If the client has not appointed a principal designer, the principal contractor must also prepare the health and safety file as soon as is practicable and ensure it is then reviewed, updated and revised from time to time.
Where there is an existing CDM co-ordinator then their appointment will continue until a principal designer is appointed or the project comes to an end. The client has until 6 October 2015 to appoint a principal designer unless the project comes to an end on or before that date. The CDM 2015 set out a list of the responsibilities of the CDM co-ordinator during the transitional period.
Where there is only one contractor and the construction phase has started, the contractor must draw up a construction phase plan as soon as is practicable after 6 April 2015.
Pre-construction information, construction phase plans and health and safety files provided under CDM 2007 for projects which are ongoing as at 6 April 2015 will be recognised as meeting the equivalent requirements under the CDM 2015.
Projects notified under CDM 2007 will be treated as notified under CDM 2015.
Principal contractors appointed under CDM 2007 will be considered to be a principal contractor under CDM 2015.
JCT has issued amendment sheets for its 2011 edition contracts to take into account the changes made by the Regulations. They can be downloaded from the JCT website.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.