CDM regulations: New rules to live by

Soon after the publication this month of the draft construction design and management (CDM) Regulations 2015, we had the 10th corporate manslaughter conviction. The Health and Safety Executive (HSE) reports that in 2013/14 there were 42 deaths in the industry with 2.3 million working days lost due to illness and workplace injuries. With the welcome upturn in construction work comes a resource and skills crisis; ingredients for an even bleaker picture for construction safety. Have revisions to the regulations come at the right time? The new regulations follow public consultation last year. They are subject to change, but expected to come into force on 6 April 2015, with a six-month transition period for certain projects. Drafts have been issued now so duty holders can familiarise themselves with the changes before then. So what’s new?

Principal designer

One significant change is the introduction of the role of principal designer for certain projects in place of the current CDM co-ordinator. The role of CDM co-ordinator was itself introduced by the CDM Regulations 2007, replacing the planning supervisor. Under the draft a principal designer will be appointed by the client if more than one contractor is likely to work on the project. This is a change from the CDM Regulations 2007 which required a CDM co-ordinator if a project was notifiable.

Unlike the CDM co-ordinator, the principal designer will be an existing member of the design team from the pre-construction phase. This is a marked change, as the CDM co-ordinator and previously the planning supervisor, did not need design experience. It involves a member of the design team taking on health and safety co-ordination commonly taken on by specialist safety consultants. Designers must be sure they have the capability to deliver this service and price for any third party input that may be needed. They would be advised to check that their professional indemnity insurance covers them for this work.

The change also leaves safety consultants without design expertise bereft of a direct work stream they have relied on since the introduction of CDM in 1994.

Designer

The duties of the designer, where not also fulfilling the principal designer role, remain largely the same as under the CDM Regulations 2007. The main changes include provision of information and emphasise the importance of co-ordination by all members of the design and construction team. All designers must be aware of the principal designer’s responsibilities as if there is only one designer on a project; they will be deemed to have additional health and safety responsibilities at all stages of the project.

Notification

Domestic clients no longer benefit from exemption to notify. Under the draft regulations a project must be notified when it is expected to last longer than 30 working days or exceed 500 person days and more than 20 workers will be on the project at any one time. Clients need to be aware of the obligation to notify but other duty holders must ensure domestic clients are aware of this requirement.

ACOP

Following public consultation, the HSE reported that only 33% of respondents supported the replacement of the Approved Code of Practice (ACOP) with guidance. Nevertheless from 6 April 2015, the ACOP is withdrawn. The draft guidance is not an ACOP and it is yet to be seen whether a new ACOP will be issued. In the interim duty holders are advised to consider the draft industry guides produced by the Construction Industry Advisory Committee in addition to the draft guidance to further understand their roles and responsibilities from 6 April 2015. Withdrawal of the current ACOP affects competency requirements under the draft regulations as “competency” risks becoming a floating standard. What is clear is that all designers and principal designers must have the necessary technical knowledge of the work being carried out and the related health and safety risks in order to provide services compliant with the regulations.

Summary

The impact of the new regulations will not be fully known until they come into force and the industry gets used to a yet further upheaval in the regulation of safety in construction. Perhaps the most interesting point with the new regulations is the focus on design as integral to safety. Designers are used to designing aware of risks to health and safety both during and post construction. Now we have yet deeper focus on the key role of a designer in co-ordinating and disseminating information to allow safe construction. A brave new world.

Sheena Sood leads the construction, engineering and infrastructure team at Beale and Company