CDM regs: A question of principal

The government has been talking for some time about joined-up thinking in legislation, but what happens when it tries to put that into practice? It is relatively straightforward when the two pieces of legislation come from the same ministry.

For instance, parts of the previous CDM Regulations were incorporated into CDM 2007, so at least there is one fewer set of regulations to understand and implement on construction sites.

Before CDM 2007 was implemented, certain sectors of the construction industry put pressure on the Health and Safety Executive (HSE) to merge them with the Building Regulations. This has its attractions, as there is some overlap between the two, but the Building Regulations are a product of the communities department, whereas the HSE comes under the Department for Work and Pensions. The government did commit to working towards integration, but this is some way off yet.

Now, from a completely different government department, Defra, it seems there is an attempt to knit together the role of principal contractor under CDM 2007, with the role of principal contractor in regulations made under the Clean Neighbourhoods and Environment Act 2005.

The Site Waste Management Plans (SWMP) Regulations are due to come into force on 6 April and provide for a principal contractor. If a project starts without an SWMP in place, the person in charge of the project and the principal contractor are both guilty of an offence. The threshold for the value of projects on which an SWMP is required will be £300,000.

The principal contractor has a duty to record the identity of the contractor removing the waste, types of waste removed, the site to which waste is taken, confirmation that the plan has been monitored regularly and any lessons learned from the differences between the first draft of the plan and performance.

Under new regulations, due out in April, if a project starts without a site waste management plan in place, the person in charge of the project and the principal contractor are both guilty of the offence

For projects over £500,000, the principal contractor must also update the SWMP and record more information about the destination and use or re-use of the waste.

No doubt, the CDM principal contractor, who is often the main contractor, can carry out these duties. The question is whether it makes sense to refer to the person with this obligation as the “principal contractor”, rather than, say, the main contractor. Is this likely to cause confusion between a principal contractor’s role, as the person responsible for health and safety on site, with the principal contractor’s proposed role as the person recording the management of waste?

Defra took a roadshow around the country as part of the consultation exercise on the draft regulations, in which it apparently suggested that the SWMP would form an appendix to the construction phase plan and should become a requirement under CDM 2007. In fact, there is a reference to the new regulations in a footnote to appendix 3 of CDM 2007 dealing with the construction phase plan, but that is merely explanatory, and does not make them a CDM requirement.

There is no question that, when the new regulations come into force, someone must be responsible for implementing them on site. In most cases, this will be the main contractor. However, Defra has deliberately chosen to refer to a “principal contractor”, possibly in an attempt to unite the two regulations. Both the SWMP regulations and CDM 2007 have worthy objectives, but is it appropriate to use the title of principal contractor in both? The HSE correctly states that the SWMP is a stand-alone document, which is required under separate regulations from CDM 2007. There is no need to attach it to the construction phase plan.

For CDM purposes, a principal contractor is needed only if a project is notifiable (where the construction phase is likely to involve more than 30 days or 500 person days construction work). There may well be some projects valued at over £300,000 which are not notifiable, in which case there will be a principal contractor for the purposes of the SWMP Regulations, but not CDM 2007. There are also some limited exemptions from the SWMP Regulations, where there will be a CDM principal contractor, but not a SWMP one. To understand the latest Defra thinking on this, see the draft non-statutory guidance at www.defra.gov.uk/constructionwaste