In one case, the client wanted an old building demolished to make way for a new structure.
The preparatory work was put in hand and the health and safety plan was prepared. The client changed its mind when it realised how long it would take to obtain the necessary permissions and carry out the demolition and rebuilding. It asked its consultant to design a means of making the original building safe.
The consultant felt that, whatever it did, it could not be certain that the building could be altered safely, nor that the final structure would be safe. The client offered to take on this risk and wanted the consultant to proceed. As client and planning supervisor for the proposed works, however, neither can ignore the responsibilities imposed on them by the Health and Safety at Work (etc) Act, as well as the CDM Regulations, nor pass these on to third parties.
As designer, the consultant cannot design an unsafe structure. As planning supervisor, it would have to prepare a new health and safety plan and give details of risks to the health and safety of persons carrying out the construction work. It would also have to review the health and safety considerations of the design. As for the client, it cannot allow the construction work to start if there is not a compliant health and safety plan.
It would have been of great help to the planning supervisor if its contract had stated that the client would accept advice concerning unsafe structures or allowed the planning supervisor to resign without loss if it believed health and safety was being compromised.
We have seen several cases where planning supervisors have experienced problems obtaining the requisite information from designers.
- Contracts must reflect the parties’ duties under the CDM Regulations
- Planning supervisors should be allowed to resign if they are not given enough information to do their job
One client refused to help because it thought the planning supervisor was making needless difficulties. The planning supervisor was therefore in danger of being in breach of the regulations. The planning supervisor was able to protect itself to a limited extent by making it clear that it had not been asked to advise the client on whether there was a compliant health and safety plan. The client was warned that it could be prosecuted if it allowed construction work to proceed without the plan, but this did not persuade it to assist.
The principal contractor, once appointed, might have been able to help put pressure on the client and its designers because it too would need information for its part of the plan. However, the CDM Regulations provide no mechanism for achieving this. Because there is no contractual relationship between the planning supervisor and designers, nor in this case between the principal contractor and the designers, neither has the right to insist that the information is supplied. Only the client could do this.
So, designers’ appointments need to include an obligation to produce the information the planning supervisor needs when it needs it. And the planning supervisor’s contract must include an undertaking from the client to get this information from the designers. This case also demonstrates the need for the planning supervisor to be allowed to terminate its appointment if it is unable to carry out its obligations because it cannot get the information it needs and thus could face prosecution.
Emergency work on site can raise particular problems. In one case, emergency works had to be carried out to make a building safe after a storm. The question arose as to whether the planning supervisor had to advise again on the competence and resources of the contractor to do the emergency works. As the contractor was already on site and nothing had alerted the planning supervisor to any change in its competence and resources, it was agreed with the Health and Safety Executive that it did not.
However, the plan prepared by the planning supervisor for this work did come under attack. The CDM Regulations’ Approved Code of Practice – a breach of which can be considered a breach of the regulations – recognises that a plan for emergency work will not be in the same form as, nor as detailed as, a plan for ordinary construction work. However, it still has to contain sufficient information. Planning supervisors should have systems in place to remind them of the steps they have to take in the event of emergency construction work.
There is no reason why a planning supervisor should not also be a designer, but it is important that the two functions are clearly distinguished.
Postscript
Rachel Barnes is a partner in solicitor Beale and Company.
