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construction regulations 2015

4 March 2015

Introduction

The new Construction (Design and Management) Regulations 2015 (CDM 2015) will come into force on 6 April 2015. CDM 2015 aim to improve health and safety while reducing the bureaucracy required under the old regime. In particular, CDM 2015 aim to better address growing health and safety concerns on small sites, which now account for over two thirds of fatalities in construction. They do this by continuing to place greater emphasis on the role of clients (being those for whom the project is carried out).

CDM 2015 were laid before Parliament in early 2015, but are still awaiting Parliamentary approval, so (as with the guidance that will be provided by the Health and Safety Executive) may still change.

Key Changes

Notification to the Health and Safety Executive (HSE)

A project will now only be notifiable to HSE where it exceeds 500 person days or 30 working days, and has more than 20 workers working simultaneously. The last of these provisions is new and accordingly is likely to reduce the number of notifiable projects.

Notification no longer triggers additional duties. Instead, these duties are triggered by there being more than one contractor (see below).

Application to domestic clients

Unlike its predecessor, CDM 2015 applies to domestic clients, being clients "for whom a project is being carried out which is not in the course or furtherance of a business of that client". This places additional burden on domestic clients, who can in turn delegate the majority of their duties to a principal designer.

Clients duties

CDM 2015 makes the client central to managing health and safety. A client must make "suitable arrangements for managing a project … [to] ensure that … the construction work can be carried out, so far as reasonably practicable, without risks to the health and safety of any person affected by the project". This obligation continues throughout the project.

CDM co-ordinator replaced by a principal designer and principal contractor

CDM 2015 abolishes the role of CDM co-ordinator. Instead, where there is more than one contractor, a client must appoint a principal designer to have control over the pre-construction stage of the project. This must be a consultant with some design responsibility, and can include principal contractors or specialist contractors. Once the construction stage of the project has started, a principal contractor must be appointed to take on co-ordination of the CDM requirements.

These obligations also apply if it is reasonably foreseeable that more than one contractor will be working on a project at any time. Importantly, in default, the client will fulfil these roles.

Abolishment of the Approved Code of Practice

The Approved Code of Practice will be abolished from 6 April 2015 and replaced by new shorter guidance, with the aim of increasing compliance. The latest consultation document in respect of new guidance can be found here:http://www.hse.gov.uk/consult/condocs/cd261.htm

A move away from competency requirements

CDM 2015 removes the explicit competency requirements which were present in CDM 2007. Instead, it requires industry professionals to have appropriate skills, knowledge and experience for the project. The competence of industry professionals is the responsibility of the relevant professional bodies.

Transitional arrangements

For projects in progress on 6 April 2015, duty holders can either elect to implement the new rules on that date or by 6 October 2015. If they choose the latter option, then during the six month transitional period:

  • where there is an existing CDM co-ordinator, a principal designer must be appointed before 6 October 2015 (unless the project is completed by that date). Before then, the CDM co-ordinator must comply with certain duties and pass the health and safety file (and other relevant information) to the principal designer on his appointment.
  • where there is no existing CDM co-ordinator, if the construction phase has not started a principal designer must be appointed as soon as practicable. If the construction phase has started, a principal designer may be appointed. If the client does not appoint a principal designer, the principal contractor is responsible for preparing the health and safety file.

Isues to consider

Additional responsibility

Professionals with design obligations may be required to take on additional responsibility as principal designers. This is likely to increase the workload, requisite skillset, and potential liability on the designer, who in turn may consider increasing its price.

Tiered industry?

Longer term, it may be that the industry will divide into multiple tiers, with those professionals willing to take on obligations as principals sitting separately from those who are not. The decision of whether to take on responsibility as a principal or not will be of clear strategic importance to professionals.

Increased liability across a wider range of projects

Professionals need to consider their insurance cover. Both principal designers and principal contractors face increased potential liability and must ensure that their professional indemnity insurance reflects this. Further, the application of CDM 2015 to domestic clients, and delegation by these clients to principal designers, is likely to mean that there is liability under the CDM across a wider range of projects. Again, this in turn is likely to increase claims under insurance.

Insurers should be aware that the scope of a professional / contractors duty will be extended. For policies that are underwritten on a civil liability basis, insurers will inevitably be liable for these new obligations. This is of particular relevance when professionals are being fixed with new duties for which they may not have the requisite skill set.

Absolute obligations?

Finally, CDM 2015 imposes a number of duties on professionals, many of which are subject to some form of qualification (e.g. by the words "so far as is reasonably practicable"). However, there are also a number of duties which appear to be absolute (they "must" be performed). Since criminal sanctions apply to a breach of CDM 2015 (through the Health and Safety at Work Act 1974) this clearly has important implications for those subject to the duties.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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