Key Changes from CDM 2007
Important changes to the CDM Regulations 2007 come into force on 6 April 2015. The CDM Regulations 2015 have much wider application than the regulations they replace and accordingly whatever size of project in which you are involved you should be aware of and understand the new and transitional regimes.
The new regulations will introduce significant changes including:
- extending the scope of the regulations to include domestic clients;
- removing the role of the CDM Co-ordinator;
- introducing a new duty holder—the Principal Designer;
- appointment of principal designer and principal contractor if two or more contractors are on site; and
- changing the HSE project notification threshold.
To What do CDM 2015 apply to?
The CDM 2015 will apply to all construction work in the UK and will affect almost every construction, engineering or development project, whether notifiable to the HSE or not. There is now no exclusion for small or domestic projects.
While domestic clients are not excluded, the domestic client’s burden is minimised as the CDM 2015 automatically passes a domestic client’s duties to other parties. This does not mean that the domestic client has no responsibilities as, for example, it may still have duties to provide a safe site for works.
For a domestic client, the contractor or principal contractor is required under CDM 2015 to carry out the domestic client’s duties to manage the project and where necessary notify the HSE.
The Principal Designer
One of the key aspects of the changes in CDM 2015 is that the CDM Co-Ordinator (CDMC) will be replaced by a new duty holder—the Principal Designer. The role of the CDMC will be split between the Principal Designer, the client and the principal contractor. The Principal Designer will be responsible for health and safety in the design team and can be a role fulfilled by an individual or an organisation. A significant change is that a Principal Designer must be appointed whenever there is more than one contractor working on a project.
The aim of changing from having a CDMC to a Principal Designer is largely driven by the desire to meet the requirement of the Temporary or Mobile Construction Sites Directive, which requires pre-construction co-ordination. The responsibilities of the Principal Designer will include, but are not limited to:
- planning, managing and monitoring the pre-construction phase;
- ensuring that where reasonably practicable, risks are eliminated or controlled through design work;
- passing information to the principal contractor;
- ensuring designers comply with their duties; and
- preparing the health and safety file.
The Client’s Duties
CDM 2015 places a greater responsibility on the employing client for key health and safety issues. Clients are considered best placed to set and enforce standards and set the tone for the project to ensure all relevant health and safety requirements are being maintained and reviewed.
As such, you should advise clients of their duties and the consequences of not complying with health and safety requirements, as the concepts are not novel, but reinforced by CDM 2015, which reiterate that failure to comply can lead to criminal sanctions.
With the removal of the CDMC, clients will become responsible for:
- notifying the HSE of the project particulars and confirming that they are aware of their duties;
- appointing a principal designer and principal contractor;
- ensuring duty holders comply with their duties under the CDM 2015;
- providing the pre-construction information;
- ensuring that the minimum health and safety standards are maintained on site throughout the works;
- ensuring that the construction phase health and safety plan is drawn up by the principal contractor; and
- ensuring that a health and safety file is produced by the principal designer
Although in practice the client may delegate certain of these duties, it does, under the CDM 2015, remain ‘on the hook’ for compliance.
Several of the client’s duties are on-going, such as the responsibility to ensure that the minimum health and safety standards are maintained on site during the works. As a result, the client cannot simply appoint its principal designer and sit back. The client will need to ensure that, whether by virtue of the services to be provided by the principal designer, or otherwise, there are sufficient arrangements in place to maintain and review the health and safety processes throughout the duration of any project.
Replacement of ACOP
The Approved Code of Practice which is currently published by HSE and which sets out practical advice on how to comply with CDM 2007 will be abolished from 6 April 2015. When CDM 2015 comes into force on that date, the ACOP will be replaced by HSE guidance setting out what duty holders under CDM 2015 must or should do to comply with the law. Unlike ACOP, the guidance will not have any statutory force and failure to comply with it will seemingly have no consequences.
Notification to HSE
The notification requirements to HSE have been revised by CDM 2015. Under CDM 2015, a project needs to be notified to the HSE where it is scheduled to last more than 30 working days and have more than 20 workers on site at the same time (at any point in the project), or where it exceeds 500 person days. This will mean that fewer projects will require notification. Additionally, it has now become the client’s duty to notify HSE, if appropriate.
Transitional arrangements for projects have been drafted into CDM 2015 for projects which will be underway on 6 April 2015 and will continue beyond that date. These arrangements will apply for 6 months (i.e. 6 October 2015) and means that:
- principal contractors appointed before 6 April 2015 will be treated as principal contractors for the purposes of CDM 2015;
- health and safety files, construction phase plans and pre-construction information produced under CDM 2007 will be treated as having been prepared under CDM 2015;
- an F10 submitted under CDM 2007 will satisfy the notification requirements under CDM 2015; and
- CDMC’s appointed before 6 April can continue (although carrying out a hybrid set of services) until the earlier of a project coming to an end and 5 October 2015—after which a Principal Designer must be appointed.
Save for small projects, CDM 2015 will not contain anything that fundamentally changes how you may choose to conclude existing projects, or procure new ones. That said there are considerations to bear in mind as 6 April 2015 approaches:
- JCT Contracts
An amendment sheet to the JCT 11 has been issued and the JCT is working on a revised suite of documents for 2015 which will pick-up the CDM Regulation changes and also delete reference to the Site Waste Management Regulations.
- Professional Team
Existing forms of appointments will need to be restructured to reflect the new Principal Designer role. In practice this role may be given to the architect, who may then sub-contract part of the role to the existing CDMC companies.
- Real Estate transactions
Where works are being carried out on a site where both the landlord and tenant have interests, it may be important to consider at the outset which party has ‘control’ of the works for CDM 2015 and so is best placed to make any notifications and satisfying the requirements of CDM 2015.
The purpose of this legal update is to highlight the changes to the CDM regulations.
If you would like to discuss any of the issues considered in this legal update and/or how CDM 2015 may affect one of your projects please do not hesitate to get in touch with any member of our construction team.