On 6 April 2015 the Construction (Design and Management) Regulations 2015 (CDM 2015) will come into force. Like CDM 2007, they will apply to all building and construction work, including new-build, demolition, refurbishment, extensions, conversions, repair and maintenance work.
The HSE published its first draft guidance on the legal requirements of CDM 2015, in January 2015, this is based closely on the changes proposed during last year’s consultation.
Key changes will include the following:
- The requirement that an existing member of the design team takes responsibility for coordination of the pre-construction phase, replacing the CDM coordinator with the principal designer.
- Construction phase coordination duties will remain with the principal contractor, although the proposals do not make any provision for an independent role, as currently provided by the CDM coordinator, to protect the client.
- The assessment of ‘competence’ will be split into its component parts of skills, knowledge, training, experience and organisational capacity. These changes are aimed at simplifying how parties assess competence and assisting the construction industry in demonstrating that construction project teams have the right attributes to deliver a project which complies with health and safety legislation.
- There will be more emphasis on the client as head of the supply chain to set standards throughout a project, thus continuously placing key health and safety responsibilities on the client. (CDM 2015 automatically passes a domestic client’s duties to other parties.)
- Withdrawal of the supporting Approved Code of Practice (ACoP).
- Site notification to HSE will only be required for construction projects which are scheduled to last longer than 30 working days and have more than 20 workers on site at any point, or for construction work which is scheduled to exceed 500 person days.
Of less commercial significance, in the case of there being more than one client, under CDM 2007 the parties used to “make an election”, in writing, confirming who has to be treated as a client. CDM 2015 simplifies the language, requiring that clients “agree in writing” which party will be treated as the client.
For projects which have already commenced before 6 April 2015, transitional arrangements have been set out in the January 2015 draft guidance. They include ensuring a principal designer is appointed as soon as practicable before construction has started on any current project.
If an existing, pre-6 April 2015 project involves more than one contractor and the client has appointed a CDM coordinator, it must appoint a principal designer by 6 October 2015. Until then, the CDM coordinator's role will continue in the same way as under CDM 2007, but with revised duties specified in detail and tailored to reflect CDM 2015's arrangements (specifically concerning the production of a health and safety file and the construction phase). The transitional provisions allow for the CDM coordinator to continue until the end of the project, provided this occurs before 6 October 2015.
- A CDM coordinator who is ‘grandfathered’ into the CDM 2015 regime does not need to demonstrate that it is a designer with control of the pre-construction phase of the project.
- Any information, such as pre-construction information, a construction phase plan or health and safety file, produced under and complying with CDM 2007 will be deemed to satisfy CDM 2015.
- A person assessed as competent under and in accordance with CDM 2007 need not be reassessed under CDM 2015.
- A notification to the HSE under CDM 2007 will count as a notification under CDM 2015.
A principal contractor appointed under CDM 2007 will be the principal contractor appointed under CDM 2015.
Practical and commercial considerations of the regulatory changes
Who is ‘the client’?
Uncertainty may surround a clear understanding of the term ‘client’ under CDM 2015, defined as anyone for whom a construction project is carried out, which includes both commercial and domestic clients.
Where it is unclear who the client is under CDM 2015, HSE’s guidance suggests considering the following to resolve any uncertainty:
- Who decides what is to be constructed, where, when and by whom?
- Who commissions the design and construction work (the ‘Employer’ in contract terms)?
- Who initiates the work?
- Who heads up the procurement chain?
- Who appoints the contracts (including the principal contract) and designers (including the principal designer)?
The above considerations highlight the question of whether existing clients who would be deemed ‘clients’ under the CDM 2015 regime, would have the requisite skillset and experience to comply with the health and safety responsibilities imposed on them by the new regime.
Consequences for consultants and principal designers
It is also unclear as to what will happen to consultants currently operating as CDM coordinators or whether principal designers will have the specialist health and safety knowledge that CDM coordinators currently bring to a project – will it be that easy to apply the wording of the guidance to reality and simply ‘grandfather’ a CDM coordinator in the CDM 2015 regime? The principal designer role is currently often contracted out, at a greater expense, but the individual appointed is rarely fully embedded in the project team, therefore may have little opportunity to influence the project.
Withdrawal of the supporting Approved Code of Practice (ACoP)
This could fuel legal debate in cases as the room for manoeuvre in interpreting regulations increases and any ambiguity could be exploited to the full, whereas under existing regulations, ACoPs have special (quasi) legal status and give practical guidance on compliance for those working in such a high-risk industry.
Amends to documents required
Importantly, the new regulations will most likely bring about the need to amend appointment documents, contracts such as NEC Engineering and Construction contracts, and the definition of terms within such documents. Businesses and decision-makers in tendering processes will be keeping an even more watchful eye over future tenders, particularly those involving complex framework agreements, where health and safety responsibilities will have to be delegated to duty holders according to the new regulations. When reviewing contracts and tender documents it may be helpful to remember that the HSE has produced a draft guidance document for each of the five duty holders under CDM 2015, explaining the actions required of each duty holder.
HSE’s draft guidance along with the detail of the proposed CDM 2015 should be carefully considered by key stakeholders who are likely to be affected by the regulatory changes.
Should you require any further guidance on how to understand and prepare for the forthcoming CDM 2015, please do not hesitate to contact DWF’s Regulatory Team.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.