A more simple, integrated CDM for 2015?

constructionThe HSE has published draft guidance on the Construction (Design and Management) Regulations 2015 (‘CDM 2015’) which also contains a revised draft of the Regulations themselves.  CDM 2015 will come into force 6 April 2015 but is still awaiting parliamentary approval and therefore both the Regulations and the guidance remain subject to change. Final versions of both CDM 2015 and the related HSE guidance will be available on 6 April 2015.

 

CDM 2015 does not make wholesale changes to its predecessor, the Construction (Design and Management) Regulations 2007 (‘CDM 2007’) but the HSE wanted to create a simpler, more integrated approach to risk management.

What are the key changes?

The key changes made by CDM 2015 are:

  • A new role of principal designer is created. The principal designer will be an existing member of the design team and will have responsibility for the pre-construction phase.
  • The CDM Co-ordinator role is to be removed. Under CDM 2015, the role of the CDM Co-ordinator will be split between the principal designer, the client and the principal contractor.
  • The client is given more responsibility. Its extra duties are intended to reflect its ability to set standards for a project and to influence health and safety throughout the life of a project.
  • All of CDM 2015 will apply to projects, whether they are notifiable or not.
  • Notification requirements have been revised. Under CDM 2015, a project needs to be notified to the HSE where it is scheduled to last more than 30 working days and have more than 20 workers on site at the same time (at any point in the project), or where it exceeds 500 person days. This will mean fewer projects will require notification. Also, it has now become the client’s duty to notify, if appropriate. Notification will no longer give rise to additional duties.
  • Whereas, under CDM 2007, only notifiable projects require a CDM co-ordinator, under CDM 2015 a principal designer must be appointed whenever there is more than one contractor working on a project.
  • The duty in CDM 2007 for those appointing dutyholders to ensure their competence is amended. The requirement in CDM 2015 is to ensure that they have the necessary skills, knowledge, experience and (where appropriate) organisational capability to fulfil the role that they are being appointed to.
  • CDM 2015 will apply to all clients ie anyone for whom a construction project is carried out and so domestic clients will now also have duties under the Regulations (although they differ from the duties on commercial clients). Domestic clients will be able to delegate their duties to a contractor or the principal designer.

Transitional provisions

The draft CDM 2015 published in January also incorporates transitional arrangements for projects that will be underway on 6 April 2015 and which will continue beyond that date. These arrangements will apply for six months. If, on 6 April 2015, the client has already appointed a CDM Co-ordinator, it must appoint a principal designer within six months and, prior to that, the CDM Co-ordinator must fulfil the duties of the principal designer. Where a CDM Co-ordinator has not yet been appointed, the requirements of the transitional provisions in relation to the appointment of a principal designer distinguish between projects where the construction phase has not yet started and those where it has. By 6 October 2015, all projects must comply with CDM 2015.

ACOP replaced by guidance

The Approved Code of Practice which is currently published by the HSE and which sets out practical advice on how to comply with CDM 2007 will be abolished from 6 April 2015. When CDM 2015 comes into force on that date, the ACOP will be replaced by HSE guidance setting out what dutyholders under CDM 2015 must or should do to comply with the law. Unlike the ACOP, the guidance will not have any statutory force and failure to comply with it will seemingly have no consequences.

What is the practical point?

Despite the uncertainty created by final versions of CDM 2015 and the HSE guidance only being published on 6 April 2015, the day they come into force, dutyholders (and their advisers) must take steps before then to familiarise themselves with CDM 2015 and make preparations to ensure that they can comply with what, as things stand, will be required of them after 6 April.

Subscribers to Lexis®PSL Construction or Property can find a fuller review on the news feed on the PSLConstruction landing page - CDM 2015—draft guidance on legal requirements by Gillian Birkby, head of construction at Fladgate LLP, or on the PSLProperty landing pageOtherwise, click  here for a free one week trial of Lexis®PSL Property or here for a free one week trial of Lexis®PSL Construction. 

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