The Construction (Design and Management) Regulations 2015, which came into force on 6 April 2015 replacing CDM 2007, are still in their infancy and, at the time of writing, the six-month transitional period is just about to expire, 6 October 2015. Although the Health and Safety Executive has published some Guidance on the Regulations,1 the Approved Code of Practice (ACOP) which provided supporting guidance on CDM 2007 was withdrawn and has not so far been replaced.

Sarah Buckingham explains the legal and practical implications of the new Regulations.

The new Regulations abolish the role of CDM co-ordinator and the responsibilities for health and safety are now split between the client, the principal contractor and the newly created role of principal designer. Design takes place very early on in a project and decisions made during the concept and feasibility stage can fundamentally affect the health and safety of those who will construct, maintain, repair, clean, refurbish and eventually demolish a building.2 Therefore, the intention of the Regulations is clear – design and health and safety should go hand in hand, hence why these responsibilities are now given to a principal "designer". A key issue which has led to much debate, however, concerns who is the most appropriate person to be appointed as principal designer and when is this appointment to take place.

Regulation 5 provides that the client must appoint "a designer with control over the pre-construction phase as principal designer".3 The HSE Guidance provides a non-exhaustive list of "designers", which includes architects, consulting engineers, quantity surveyors, interior designers, temporary work engineers, chartered surveyors, technicians or anyone who specifies or alters a design.4 Some commentators suggest, however, that it is not clear who should perform the principal designer role and that it would be helpful if the Regulations or the HSE Guidance identified a particular party (such as the architect or the structural engineer) in order to eliminate this uncertainty. In our view, however, it is only right that the Regulations are drafted broadly. They cannot specify by discipline who should assume the principal designer role in any given situation as that would simply lead to more confusion because of the numerous ways construction projects are procured (e.g. single stage, 2-stage, fully traditional, traditional with contractor design portion, etc.).

Following on from this debate, it has been suggested that a contractor can only take on the principal designer role if he has been appointed at an early enough stage in the project. We can see where the confusion comes from – the principal designer is to have "control over the pre-construction phase"5 and its appointment "must be made as soon as is practicable, and, in any event, before the construction phase begins".6

This has caused alarm bells to ring amongst contractors. Many in the industry have interpreted the Regulations as drawing a very clear distinction between the pre-construction phase and the construction phase. On a design and build project for example, many regard the pre-construction phase as being the period up to the point when the contractor is appointed and only at this time does the construction phase begin. On this interpretation, it would therefore seem impossible for the contractor to have been involved in that pre-construction phase let alone to have had "control" of it.

However, the Regulations do not draw a clear line between these phases of a project, in fact quite the contrary. The "pre-construction phase" is defined in Regulation 2 as:

"any period of time during which design or preparatory work is carried out for a project and may continue during the construction phase".7

An overlap is clearly envisaged and the test for whether or not a project is still in the pre-construction phase is whether design is being carried out, not whether construction has started. The Regulations recognise that design may be carried out right through the course of a project and, in practice, this is often the case (e.g. when dealing with variations). This explains how a contractor can be involved in the pre-construction phase that is on-going, but what about the requirement for the principal designer to be appointed "as soon as reasonably practicable" and to have "control" over the pre-construction phase? The use of the word "any" in the above-mentioned definition seems to be significant – i.e. it envisages some fluidity to the pre-construction phase rather than a single defined period.

Therefore, in our view, "control" over the pre-construction phase means control over the design being carried out during a particular period in that phase. The Regulations do not expressly say that the principal designer role must be carried out by the same person from the beginning of the project right through to the end (although neither do they expressly refer to replacement principal designers). In practice, an individual's involvement in a project can never be guaranteed and there would be a fundamental flaw in the Regulations if they intended such continuity. Instead, the Regulations simply say what must happen if the principal designer's appointment ends. In short, the role reverts to the client himself8 and if a principal designer is no longer required then the health and safety file must be passed to the principal contractor.9

In the early stages of a design and build project the person in control of the design at that time is most likely to be the architect or engineer (it could not be the contractor if that contractor has not yet been appointed). The "control" then may shift to the contractor once appointed and so the contractor is then best suited to take on the role of principal designer. The reference to "control" over the design and the appointment of the principal designer early on in the project is simply recognising that the design process can have a significant influence on health and safety which is the whole intention behind the Regulations.

This view is supported by the approach JCT has taken. Its amendments dealing with CDM 2015 acknowledge that the contractor may be the principal designer or that where the principal designer is "client side" that the client can appoint a replacement principal designer. It must be implicit, therefore, that the contractor or any replacement principal designer would not have had control of the design earlier on – it can only be in control of the design for the duration of its appointment.

Designers (including principal designers) "must have the skills, knowledge and experience [and] organisational capability necessary to fulfil the role that they are appointed to undertake".10 They are also under a duty to not accept an appointment unless they satisfy these conditions.11 As long as these criteria can be met by the person who in reality has control over the design being carried out at the particular point in time, we suggest that in most situations it should not be difficult to identify who is best placed to assume the role of principal designer.

Footnotes:
1. "Managing health and safety in construction, Construction (Design and Management) Regulations 2015, Guidance on Regulations" L153 Published 2015, HSE Books.
2. See paragraph 75 of the HSE Guidance.
3. Regulation 5(1)(a), The Construction (Design and Management) Regulations 2015.
4. See paragraph 72 of the HSE Guidance.
5. Regulation 5(1)(a), The Construction (Design and Management) Regulations 2015.
6. Regulation 5(2), The Construction (Design and Management) Regulations 2015.
7. Regulation 2(1), The Construction (Design and Management) Regulations 2015.
8. Regulation 5(3), The Construction (Design and Management) Regulations 2015.
9. Regulation 12(8), The Construction (Design and Management) Regulations 2015.
10. Regulation 8(1), The Construction (Design and Management) Regulations 2015.
11. Regulation 8(2), The Construction (Design and Management) Regulations 2015.

This article is taken from Fenwick Elliott's 2015/2016 Annual Review. TO read further articles go to www.fenwickelliott.com/research-insight/annual-review/2015

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