This article was first published in Construction Manager on 17th April 2014. The article can be viewed online here.
On 31 March 2013 the consultative document on the replacement of the Construction (Design and Management) Regulations 2007 (CDM) was released. This document, CD261, has been long awaited. It flags up the HSE's present thinking on what should be changed from the existing regulations, and provides an opportunity for interested parties to have a say before the regulations are set in stone. The consultation will close on 6 June, and the revised regulations will come into force in April 2015.
When these regulations first surfaced in 1994, they were quite a departure from the previous prescriptive regulatory regime. CDM introduced the idea of dividing up a construction project into areas of responsibilities/duties. First, they identified the main players in construction, then allocated the duties these parties would be required to perform at any given site.
Most sites would have a client-type entity, and they would be working to a design provided by an architect or design engineer or equivalent, and they would use a variety of contractors to do the job. Usually one of these contractors would take a lead mainly because of its dominant role on the site. Thus it is easy to see where the "client", "designer", "principal contractor" and "contractor" CDM roles come from.
The coordination role that would seem important on a site of any size was not so easily identified on sites pre-1994, which may be the reason why first the ï¿½planning supervisor' then the ï¿½coordinator' role has been problematical and subject to revision in the 2007 and now in the 2015 regs.
CDM has been subject to criticism from 1994, but to some extent this would be expected following such a significant change in how the industry was to be regulated. The CDM approach is valid as it attempts to ensure that those parties that have the opportunity to influence the way a project is performed use that influence to ensure health and safety. Before 1994, the perception was that the contractors at the less influential end of a site "food chain" were having to deal with too much responsibility. The CDM regs attempted to ensure that transparent responsibility was spread equally along that "food chain" from the client at one end to the least influential subcontractor at the other.
So what is the 2015 version going to bring? According to the HSE press release, the proposed changes will:
- Make the regulations easier to understand;
- Replace the CDM Coordinator role with the principal designer;
- Replace ACOP with targeted guidance;
- Replace the detailed and prescriptive requirements for individual and corporate competence with a more generic requirement;
- Align notification requirements with the EU Directive and apply the Regulations to domestic clients but
- In a "proportionate way".
This press release is a good summary of the proposed new regime, while the actual stated objectives on page 5 of CD261 do not mention what could be argued as the main stimulus for change - and definitely the most controversial - which is the inclusion of domestic clients. I am sure I was not the only one flicking through the document looking first for "domestic clients" and second for how they deal with the "coordinator" issue.
These two issues bring to the fore the major tension that CDM has had to cope with from its inception in 1994. These regulations cover an industry that at one end of the spectrum may be a man with a van and a ladder, and at the other end, the building of the Channel Tunnel or HS2. The new regulations will have this tension plus the added complication of dealing with the issues relating to projects involving domestic clients, considerably different from those of large sites where a separate, "independent" coordinating role would be of such benefit.
The domestic client issue has been dealt with as predicted, by passing on the client responsibilities to the contractor/principal contractor, with the option to appoint the newly created role of "principal designer". I imagine it is anticipated that this will fit in with the common situation on larger domestic projects where the architect or designer acts as the project manager/supervisor. It is notable that the HSE states that it believes there will be little practical change, and interestingly refers to how this will be made clear in the proposed guidance "as well as the associated enforcement expectations". Does this mean that there are going to be differing enforcement thresholds for different types of projects?
The new role of principal designer is interesting as it takes something away from the designer role (which still exists) and moves the old CDM Coordinator role to be a sort of pre-start of construction. Although some will question whether this development is really reducing the bureaucracy of CDM, this enhanced role will, on the face of it, provide a more integrated pre-construction approach. However, often when a role is enhanced there is a commensurate increase in legal exposure. I will be interested in how the relevant professional bodies react.
Richard Voke is a partner at Ashfords solicitors and head of the firm's business risk and regulation team