UK: New Health And Safety Duties For Developers

Last Updated: 31 May 2007

The existing Construction (Design and Management) Regulations 1994 and the Construction (Health, Safety and Welfare) Regulations 1996 are replaced by the Construction (Design and Management) Regulations 2007 ("the new Regulations"), which came into force on 6 April 2007.

What are the Client’s New Duties

Under the new Regulations, a client must:

  • check the competence of all duty holders including the CDM Coordinator, Designer and Principal Contractor
  • ensure that a CDM Co-ordinator1 and principal contractor are appointed (if not client is deemed to be appointed and to have their respective responsibilities);
  • ensure that designers and contractors are promptly provided with "pre-construction information" in the client’s possession.
  • provide the CDM Co-ordinator (see below) with all the health and safety information in its possession which is likely to be needed for the health and safety file.
  • ensure that the construction phase does not start unless the principal contractor has prepared a construction phase plan and the client is satisfied that the regulations relating to the provision of welfare facilities will be complied with.

The client also has a general duty to take "reasonable steps" to ensure that the arrangements for managing the project (including the allocation of sufficient time and other resources) are suitable to ensure that the construction work can be carried "so far as is practicable" without risk to health and safety of any person.

What are the consequences for breaching the new Regulations?

As with the Regulations they replace, there is no civil liability for breach (with the exception of claims by employees against employers) but a breach, particularly if it leads to an accident on site, is likely to be the subject of criminal prosecution by the Health and Safety Executive. The potential penalty for breach leading to a criminal prosecution is an unlimited fine in the Crown Court.

What projects will be covered?

The Regulations will apply to all projects involving construction work lasting for more than 30 days or involving more than 500 person days of construction work.

What steps should be a client take to prepare for the new Regulations?

  • Consider the relevant health and safety matters at an early stage in the project.
  • Collate all relevant health and safety information at an early stage and provide it to the CDM Co-ordinator and designers.
  • Appoint a CDM Co-ordinator (if a Planning Supervisor is not already in post) and a Principal Contractor
  • Assess and document the competence of the CDM Coordinator and Principal Contractor that he appoints
  • Ensure that the project is managed in accordance with the new Regulations from 6 April onwards
  • Clients also need to review their standard terms of appointment and contracts and should consider new terms of appointment for the appointment of CDM Coordinators and ensure these are agreed and finalised at an early stage of any project (NB: JCT has issued Amendment 1 to the JCT 2005 suite of contracts to take account of the new regulations).

What must the client do to assess the competence of CDM Co-ordinators, designers and principal contractors?

In summary, the client should:

  • Carry out an assessment of the competence of all those engaged under the new Regulations
  • Make reasonable enquiries to check that an organisation or individual appointed under the Regulations can allocate adequate resources to satisfy their duties under the new Regulations.
  • Document that the assessment has been carried out and the basis upon which the assessment has been made.

The overriding consideration is to ensure that the individual organisation to be appointed has the competence to carry out the work required of them safely. The Approved Code of Practice for the new regulations sets out a range of matters that should be taken into consideration when carrying out these assessments.

What should the client include in the pre construction information?

  • any information affecting the site or the construction work
  • any information concerning the proposed use of the structure as a workplace
  • the minimum amount of time that will be allowed to the contractors for planning and preparation of construction work
  • any information in an existing health and safety file.

What does the client have to do before the construction phase can begin?

The client must check that suitable welfare facilities have been provided on the site and that the principal contractor has prepared the construction phase plan. The client is obliged to check that the construction plan complies with the new Regulations with assistance from the CDM Co-ordinator.

Are there any specific duties which fall outside the client’s responsibilities?

The client is not required to:

  • Plan or manage construction projects themselves
  • Specify how work must be done
  • Provide welfare facilities for those carrying out construction work (although note that the client has to ensure that these facilities have been provided before construction phase starts).
  • Check the designs to make sure that the designer has complied with his duties under the regulations and visit the site to supervise or check construction work or standards

Footnotes

1 The new Regulations introduce a new role of CDM Co-ordinator in place of the planning supervisor, who will have a number of important additional responsibilities, giving him a pivotal role within the project team. The CDM Co-ordinator will be required to "identify and extract" all information required to secure the health and safety of anyone engaged in construction work and those who are likely to be affected by the way in which that work is carried out as well as identifying and extracting information to assist the client, to perform its duties under the new Regulations.

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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