The CDM Regulations 2015 - one year on

The CDM Regulations 2015 - one year on
 As the one-year anniversary of the Construction (Design and Management) Regulations 2015 (‘CDM Regulations 2015’) approaches, Gillian Birkby, head of construction at Fladgate LLP, explores how the regulations have been working in practice, including the principal designer role and the absence of an Approved Code of Practice.

(A checklist setting out the changes that were introduced by the CDM Regulations can is available in our free downloads area).

Have the CDM Regulations 2015 generally been received positively by the industry?

There has been a mixed response to the CDM Regulations 2015, partly because many people had become comfortable with the Construction (Design and Management) Regulations 2007 and felt that they knew and understood how to run projects taking into account the requirements of those regulations.

It is not simply the case that a few tweaks have been made to the wording of the CDM Regulations 2007—some significant changes in the allocation of health and safety risks have taken place (for more information on the changes see my previous analysis: CDM 2015—draft guidance on legal requirements). However, the introduction of the CDM Regulations 2015 has been an opportunity for certain types of organisation, eg large employers, to renew their commitment to health and safety.

In general, has the HSE provided adequate guidance on the new regulations?

There is no Approved Code of Practice (‘ACoP’) to accompany these regulations, and this is much missed. With the CDM Regulations 2007 the ACoP not only provided helpful advice, it also had a particular status—compliance with an ACoP was generally considered sufficient compliance with the associated regulations. This was a great help to those who wanted to impress on clients and others that they must follow the ACoP—its wording was much easier to follow than the regulations themselves.

Did the transitional period work well?

The industry as a whole has taken many months to understand what is required under the CDM Regulations 2015 and to apply them to ongoing projects. The transitional period of only six months meant that many projects started under the CDM Regulations 2007 had not reached completion by the time the transitional period was over. In other cases, projects which extended by a short period beyond the end of the transitional period caused extra administrative work in bringing an almost complete project into line with the CDM Regulations 2015.

Is there a good understanding in the industry now regarding the principal designer role and who can/should take it on?

No. There is still considerable confusion about the principal designer role and who should be doing it. There is a widespread misconception that only a designer on the professional team can take on the role. There are still many clients and others who think a principal designer is the same thing as a lead designer whereas, in fact, the two are not the same. The HSE has deliberately defined a designer in the regulations and in its guidance (L153) in very wide terms, to include, for example, a quantity surveyor. Others believe that the principal designer must control more than the health and safety aspects of the pre-construction phase, and this also is incorrect. It would be helpful if the HSE could clarify that a principal designer is not required to be one of the designers on a project nor do they have to control the pre-construction phase, except for health and safety purposes. The wording of the CDM Regulations 2015 does not specify this.

Has initial resistance from consultants to take on the principal designer role now disappeared?

A well advised or prudent design consultant will not take on the principal designer role without an express appointment—preferably a separate appointment from the client—and certainly will require payment specifically for the role, which involves a significant amount of extra work.

Over the next few years, design consultants will become sufficiently skilled to act as principal designers, but many are not at that stage yet, and it is sensible for them to resist acting as principal designer without some expert support, for example, from an ex-CDM co-ordinator.

How are clients coping with their additional duties?

As usual, some clients entirely ignore their health and safety duties, or hope that they will go away. The more responsible clients, realising that they cannot rely on a CDM co-ordinator to advise them on their duties—and that this is not the role of the principal designer—are engaging health and safety advisers, sometimes an ex-CDM co-ordinator, to assist them in carrying out their CDM duties properly.

Are all the CDM co-ordinators now being engaged as sub-consultants?

Some CDM co-ordinators have taken on the role of principal designer, as they are designers in their own right. In addition, they and others who are not technically designers are working as sub-consultants to the named principal designer. This can work very well as the CDM co-ordinators have become skilled in construction health and safety issues, so are particularly well suited to continue to provide this kind of service in a slightly different position within the professional team.

Is the CDM co-ordinator role missed in practice?

The abolition of the position of CDM co-ordinator has been the most noticeable change in the CDM Regulations 2015. It is true that some CDM co-ordinators were over-zealous when it came to paperwork, and others failed to become involved with the design team, partly on the ground of cost, as CDM co-ordinators were not well paid. However, there were many good CDM co-ordinators. Their high level of expertise on health and safety matters is definitely missed, especially on those projects where the CDM solution has been to persuade a lead designer unskilled in this area to become the principal designer.

Interviewed by Stephanie Boyer. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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