UK: The CDM Regulations 2007 - Do You Have The Energy?

Last Updated: 10 July 2007
Article by Rhian Gilligan and David Beckenham

After much debate, countless consultations and numerous redrafts, the Construction Design and Management Regulations 2007 (the Regulations) hit the statute books on 6 April 2007. In this article we consider the impact the Regulations will have principally on the power generation sector, although of course the Regulations have a far broader remit.

The scope of the regulations

As the title may suggest, the Regulations apply to construction work, widely defined so as to include building, civil engineering or engineering construction work, as well as alterations, conversions, fitting out, commissioning, renovation, repair, upkeep, redecoration and certain cleaning operations. Perhaps less obviously, the definition also includes demolition, decommissioning and dismantling of structures. With particular reference to the power generation sector, "construction works" will certainly encompass buildings, structures comprised of metal and/or concrete, tunnels, shafts, gas holders, roads, masts, towers and pylons. Interestingly preparation for construction works is also caught, meaning that site clearance, investigation and excavation may, in certain circumstances, require compliance with the Regulations.

In common with the 1994 Regulations that they replace, the new Regulations lay obligations on all parties to construction projects, in particular:

  • Clients – those who either carry out their projects themselves or instruct or accept the services of others to carry out a project on their behalf.
  • CDM co-ordinator – responsible for advising the client on its obligations under the Regulations and ensuring co-ordination and co-operation in respect of health and safety amongst those working on the project. Similar to the planning supervisor role operated under the old regime.
  • Principal contractor – takes on wide ranging obligations including co-ordination of contractors, provision of information to those working on the project and the drafting of site rules.
  • Contractor – anyone who carries out or manages construction work.
  • Designer – those designing or modifying designs for construction work, including structures, products and mechanical and electrical systems.

Specific application to the power generation sector

A new build station is a primary example of a scenario in which the commissioning company will, in all likelihood, take on the role of the client. In a significant departure from the previous Regulations, companies in this situation can no longer delegate their responsibilities to an agent appointed to manage the project on their behalf. Instead, during such a project that company must:

  • Appoint a CDM co-ordinator and a principal contractor, verifying their competence and resources as well as those of other appointees and sub-contractors. Failure to take such a step may result in the commissioning company being deemed to have assumed these roles for which it is unlikely to hold the requisite competencies to discharge the obligations to the satisfaction of the HSE, who are likely to be particularly attentive to such large undertakings, assuming that they have been notified as required.
  • Provide pre-construction information to designers and contractors, together with health and safety for collation by the CDM co-ordinator.
  • Ensure appropriate management arrangements are in place, including a suitable construction phase plan.
  • Take reasonable steps to check the competence of contractors and sub-contractors. What is deemed "reasonable" will depend upon the size of the project and any specific risks associated with it. That being the case, the duty upon a power company building a new station will be much more onerous than in the case of most average scale construction projects.
  • Allow sufficient time and resources for completion of each stage.
  • Retain and provide access to the health and safety plan.

The challenges facing power generation companies seeking to build new stations is considerable. Industry associations, such as the Association of Electricity Producers or the Energy Networks Association, have a role to play in developing an accreditation scheme for contractors who work within this sector. Whilst the commissioning company could not rely entirely on membership of such a scheme when checking contractors’ competence, it will undoubtedly be an important part of the overall due diligence process.

In contrast, where work is taking place on an existing station and the owner of the station is not also the operator, the identity of the client will depend upon a number of factors. The primary determining factor will be which company is commissioning the works, with the client responsibilities likely to rest on that entity.

Another relevant factor in such circumstances will be the control arrangements in any lease. If a lease imposes repairing and maintenance obligations on one of the parties and that party assumes that responsibility, discharging that role may constitute "construction work" for the purposes of the Regulations, triggering the regime they impose.

It is probable that some of the work carried out during outages will also engage this new Regulatory framework, although its impact may be mitigated by separating the outage work into several distinct projects. In order to do this, power generators should consider carrying out work in different departments or on different pieces of plant.

The reality of the Regulations is that it will not always be entirely apparent when they apply. Guidance can be found in the Approved Code of Practice, which should be consulted at least initially on all occasions when sizeable works are to be carried out. For example, substantial dismantling or alteration of fixed plant which is large enough to be a structure it its own right, (for example structural alteration of a power station generator or large boiler) will be "construction work" for the purposes of the Regulations as will the high pressure cleaning of parts of the plant.

Further, regardless of whether the project is notifiable or not, the client will always be responsible for checking competency and resources, ensuring suitable management arrangements are implemented, the provision of pre-construction information and for allowing sufficient time for the completion of all stages of the project. These responsibilities are then compounded when dealing with notifiable work, when the client must begin to appoint a CDM co-ordinator and principal contractor in addition to satisfying the other duties outlined.

Getting it wrong

Although the sanctions that can be imposed under the Regulations are initially relatively modest (£5,000 when sentenced by the magistrates’ court), in reality, power generators are likely to find themselves before the Crown Court where breaches have occurred. This opens the company up to an unlimited fine.

However, our experience suggests that, on the whole, the HSE tend to shy away from specific regulatory prosecutions, instead preferring to cite alleged breaches of the current CDM Regulations as particulars in proceedings brought under one of the general duties outlined by the Health and Safety at Work etc Act 1974 (HSWA). This automatically raises the bar in terms of financial penalty, with a £20,000 maximum available to the magistrates and an unlimited fine in the Crown Court. Additionally, HSWA provides the opportunity for the regulators to pursue employees (including senior managers) and directors, and such cases are on the increase in line with the increased public thirst for corporate and personal accountability.

Hammonds’ expertise

Hammonds’ Safety, Health & Environment and Built Environment Groups provide a one stop shop for all your CDM enquiries. We are able to advise on all parties’ obligations at every stage of your project. Additionally, our unique SHE ©onsulting practice can provide practical and tailored solutions to help you implement the 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.