Legalese: The new CDM regulations came into force this month, with the principal designer taking on significant responsibilities, writes Mark Klimt
The new Construction (Design and Management) Regulations 2015 (CDM 2015) came into operation last week, reinforcing some of the existing provisions and creating new obligations for members of the construction team and for the employer. Architects would be well advised to familiarise themselves with the new requirements so that they can continue to confirm (as they are routinely required to do in appointment documents) that they are fully qualified and able to comply with the CDM regulations. Architects also need to take care they do not unwittingly assume a greater responsibility under the new regulations than is intended.
As with the previous regulations, CDM 2015 provides for each member of the construction team as well as the client to have a responsibility for operating and maintaining a safe project. The provisions now apply to virtually all construction projects and require earlier health and safety planning. A project is notifiable if it will last more than 30 days and have more than 20 workers on site at any time, or if it will take more than 500 person-days to complete.
The client’s role is broadened, with responsibility for ensuring that the principal contractor and principal designer comply with their duties, and for making Health & Safety Executive notification. Architects need to establish which of the CDM 2015 responsibilities they are assuming and that their insurers are comfortable with these liabilities.
A key change in the 2015 regulations is the abolition of the CDM co-ordinator. The principal designer is now responsible for ensuring that all designers comply with their duties. This may be difficult where the principal designer has no direct contractual authority over them. Any failure to comply by a designer will also place the principal designer in breach. The principal designer will also be responsible for co-ordinating the pre-construction phase and for preparing the health and safety file.
Where there is more than one contractor, the client must appoint ‘a designer with control over the pre-construction phase’ as the principal designer. There are other disciplines that could be the principal designer but it is likely to be the architect. As well as having to be properly geared up to perform these new duties, the architect must take care not to assume the role by default; under domestic projects no formal appointment is necessarily required, and a consultant could find that the duties of principal designer have been imposed on it automatically.
The duties of the team are not as mutually exclusive as before. Consultants should be aware that they may be required to take on the responsibilities of the principal contractor, a contractor and a designer, particularly on smaller projects or where its capabilities extend to contractor-type roles.
The designer will have an obligation to ensure that the client is aware of its obligations under CDM 2015 before it starts work. Designers are responsible for taking all reasonable steps to provide sufficient information about the design, construction and maintenance of the structure adequately to assist the other parties to comply with their CDM obligations, so architects as designers should ensure that their additional information is suitably comprehensive.
There is a transitional period through to October 2015, and during this time duties and activities carried out according to CDM 2007 will be deemed compliant with the obligations under CDM 2015. Given, though, that the transitional arrangements only apply for six months, members of teams on currently active projects that will continue after October should ensure their roles and responsibilities are compliant with CDM 2015 by then.
- Mark Klimt is a partner at law firm DWF