UK: New Year. New Team?

Last Updated: 25 February 2002

For Health and Safety issues, 2002 will be a year of significant change and debate for the construction industry and the beginning of a process intended to culminate in revised CDM Regulations coming into force during 2004.

A revised Code of Practice to accompany the CDM Regulations was issued by the Health & Safety Executive at the beginning of December 2001 the first since the Regulations came into force in 1995. In addition, both the Health and Safety Executive and the Strategic Forum, headed by Sir John Egan, are now preparing discussion papers to be issued in May/June 2002. These discussion papers will present a high level review of the workings of the CDM Regulations, with particular focus on the roles of the client and the designer.

Following on from this high level review, a more detailed consultation document will be prepared by the Health and Safety Executive in 2003, which will include any revised Regulations. These Regulations will, subject to further consideration and review, come into force the following year.

The revised code of practice

The revised Code of Practice came into effect on 1 February 2002, and has been substantially reformatted in an attempt to make the document more user friendly. The full text of the Regulations has been set out in the Appendices, and changes to the Regulations introduced since 1995, e.g. the revised definition of ‘designer’ have been blacklined for ease of reference. There is now more detailed guidance on the role of designers and clients which includes examples of how the Regulations have been applied in practice, and responses to frequently asked questions.

The proposed discussion papers

The need for a more fundamental review has arisen from the perception that the existing CDM Regulations are failing to improve site safety. In the six years since the introduction of the CDM Regulations in 1995, there has been a rise in construction fatalities, with the number of workers killed on site during the period increasing from 81 to 106.

The discussion papers to be produced by the HSE and the Strategic Forum will both consider how the Regulations should be developed, and are likely to be co-ordinated in their recommendations.

As outlined in his recent talk to the Constructors Liaison Group, Sir John’s proposals are likely to include the following key proposals, namely that:

  • clients should appoint an independent safety advisor at the outset of the project
  • that the construction team must be able to prove their competence, either through membership of a trade association or accreditation scheme i.e. that there will be mandatory minimum training standards. This idea is linked to a suggestion that the DTI will merge its two schemes Constructionline and the quality mark.

As a consequence of these two proposals it is likely that the role of planning supervisor will disappear in favour of the independent safety adviser and that clients will face greater responsibility for site safety.

Whilst there is a consensus that amendment to the CDM Regulations is required, it has sparked the debate as to what and how extensive the changes should be, with some architects and planning supervisors arguing that the role of planning supervisor could be made to work more effectively were the regulations given greater ‘bite’ and if planning supervisors were involved in the design process at an earlier stage.

The more radical approach urges the abolition of the role of planning supervisor, and a requirement for an integrated supply team, with the responsibility for safety being shared by the whole team, who would seek to design out risk during the early stages.

In conclusion

The implications for construction documents, are hard to assess at this stage given that no firm proposal has yet been made.

However, for projects with a long construction timetable it would be sensible to ensure that the appointments of planning supervisors allow for termination at will by the client, in the event that their role disappears.

The appointments of the rest of the professional team will also need to be considered as their duties will assume the existence of the planning supervisor, and should expressly provide for the client to omit or require additional services as necessary.

Any revisions to the CDM Regulations will also impact on all the standard form building contracts.

Refocusing on health and safety issues is of vital importance to the industry and long overdue. That death rates should have risen after the introduction of legislation specifically designed to improve safety is simply unacceptable and the proposals for future change are eagerly awaited.

"© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us."

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