In March 2014, the Health and Safety Executive ("HSE") published a consultation document on the proposed changes to the Construction (Design and Management) Regulations 2007 and the linked Approved Code of Practice, including a copy of the draft Construction (Design and Management) Regulations 2014.
The proposed amendments aim to simplify the current regulatory package, reduce bureaucracy, encourage improved heath and safety standards (particularly on small construction sites) and bring UK regulations into line with European requirements.
The most significant changes to the CDM 2007 Regulations under the current proposals are:
1. A substantial simplification of the structure of the Regulations
The CDM 2014 Regulations aim to simplify the existing Regulations through more straightforward drafting with less duplication. They will also use a structure which follows the process of a construction project so that the Regulations are easier to navigate.
2. Replacement of the current Approved Code of Practice
The Approved Code of Practice relating to the CDM 2007 Regulations ("ACOP") is intended to be replaced with a more targeted collection of guidance notes. The guidance will be particularly tailored to small businesses and is likely to include template documents alongside a plain-English explanation of what action is required in order to comply with the law.
Having said this, an HSE board paper published in August 2014 has cast doubt on whether the ACOP will in fact be abandoned. The board paper states that the HSE is now proposing to produce a shorter "signposting" version of the ACOP. It is thought that this is partly due to concerns that the guidance notes cannot be written in time and partly due to consultation responses in support of the ACOP.
3. Removal of the CDM Coordinator role
It is proposed that the role of CDM Coordinator be removed entirely, with CDM Coordinator duties to be shared between the principal contractor and the new role of principal designer. The principal designer will be responsible for the pre-construction phase of a project and the principal contractor for the construction phase.
Although the responsibilities of principal designer closely follow those of the CDM Coordinator, they are more widely drafted and are designed as actions to achieve the overall duty to plan, manage, monitor and coordinate the pre-construction phase of a project, rather than as separate duties.
It is intended that the principal designer will be appointed from the existing project team rather than being a separate external appointment, and will therefore be seen as playing a more integral role in the project.
4. Replacement of competence requirements
It is proposed that the current competence requirements of the CDM 2007 Regulations are replaced with a general requirement to ensure that appropriate information, instruction, training and supervision is made available to allow those carrying out construction work to do so safely. This means that the competence of construction industry professionals will be overseen by the relevant professional bodies and is intended to promote a greater sense of joint responsibility for agreeing standards of assessment and co-ordinating training.
5. Removal of the domestic client exemption
The CDM 2007 defines a client as any person who "in the course or furtherance of a business" has or seeks to have construction work carried out. This phrase effectively exempts owner occupiers from client duties. The Temporary or Mobile Construction Sites Directive does not make such a distinction. In a bid to reflect the Directive's requirements, it is proposed that the domestic client exemption is removed and a default position created whereby duties that would fall on a domestic client instead fall to the principal contractor.
6. Change to the threshold for the appointment of coordinators
Under the CDM 2007 Regulations a client's duty to appoint a CDM Coordinator applies where the construction phase of a project is likely to involve more than 30 days or 500 person days. This threshold is removed in the CDM 2014 Regulations and clients are simply required to appoint a principal contractor on any project where there is more than one contractor.
Timescale for implementation
Importantly, it appears that these Regulations are intended to apply retrospectively from the date of their implementation, currently expected to be 6 April 2015. However, there is currently very little clarity as to what will happen to existing contractual arrangements at this date, and given that 2015 is the year of both the general election and the review of the European Directive on which the amended CDM Regulations are based, it is possible that the draft regulations as currently proposed are never actually implemented.