UK: Will You Be Safe On 6 October 2015?

Last Updated: 6 October 2015
Article by Edward Phillips and Sarah Elliott

For anyone who commenced a building project after 6 April this year the role of principal designer and the additional client responsibilities created by the CDM Regulations 2015 will be familiar. However if your project was already on site and you have continued to engage a CDM Coordinator (as permitted under the transitional provisions of the Regulations) are you ready for 6 October?

Things you should know

  • The CDM Regulations 2015 replaced the CDM Regulations 2007 on 6 April 2015.  Transitional provisions allowed existing projects to continue to proceed under the old Regulations until 6 October 2015 after which the new Regulations apply.
  • The client now has increased responsibility for health and safety matters.  It is the client's responsibility to:
    • Notify the HSE of a notifiable project (if you notified under CDM 2007 you do not need to notify again)
    • Appoint a principal contractor and principal designer (see below for more information about the principal designer)
    • Check the principal designer and principal contractor comply with their duties
    • Ensure a construction phase health and safety plan is prepared by the principal contractor
    • Ensure a health and safety file is prepared by the principal designer
  • The client can delegate any of the above duties but ultimately they are his responsibility. 
  • If the client fails to appoint a principal designer and/or principal contractor, he will be responsible for those roles.
  • Failure to comply with the CDM Regulations incurs criminal liability. Serious breaches of health and safety legislation could result in construction work being stopped by the HSE or the local authority and additional work (at additional cost) may be needed to put things right. In the most serious circumstances, the client could be prosecuted.
  • You should check that all new contracts you enter into refer to the new Regulations. JCT has published CDM amendments for each of its contracts.  These can be easily incorporated into your new JCT 2011 contracts. 
  • HSE has published useful guidance on the new Regulations here. These do not have the same status as the ACOP for the old Regulations but they represent best practice.

Who should be my principal designer?

The role of CDM Coordinator will cease to exist from 6 October.  If you don't already have one you need to appoint a principal designer as soon as possible

The principal designer must:

  • Be a designer – note that non-designers who previously carried out the role of CDM Coordinator cannot be appointed as the new principal designer
  • Have 'control' of the pre-construction phase of your project
  • Have the relevant skills, knowledge and experience

What are my options?

There are several ways in which you can approach the end of the transition phase and the appointment of a principal designer:

  • You might think that the straightforward option would be to terminate your existing CDM Coordinator appointment and appoint the same (or another) consultant as the principal designer. There are, however, issues with this approach:
    • As above, non-designers who previously carried out the role of CDM Coordinator cannot be appointed as the new principal designer. In other words, simply rebadging your existing CDM Coordinator as a principal designer is unlikely to comply with the requirements of the CDM Regulations 2015.
  • The principal designer needs to have 'control' of the pre-construction phase of your project. Appointing a new consultant mid-way through the project (as a replacement for the CDM Coordinator) is unlikely to comply with this requirement.

So what are the other options?

  • Assuming that they have the requisite skills, knowledge and experience, then it might be possible to appoint an existing designer (commonly the architect or a lead engineer) as principal designer. The consultant in question may or may not also want to consider taking a novation of your existing CDM Co-ordinator appointment where they do not have sufficient internal resources to comply with the requirements of the role.
  • In a design and build structure, where the "client" for the purposes of the CDM Regulations is one step removed from the appointment of the architect it may be preferable for your design and build contractor to take over the role of principal designer as well as principal contractor. Consideration will need to be given as to how to approach such appointment within the contractual framework for instructing changes / variations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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