New Construction (Design and Management) Regulations 2015 now in force

The Health and Safety Executive (HSE) in March 2014 launched a consultation to replace the Construction (Design and Management) Regulations 2007 (CDM Regulations) and withdraw the Approved Code of Practice. The CDM Regulations implement the requirements in Directive 92/57/EEC on the implementation of minimum safety and health requirements at temporary or mobile construction sites. An evaluation conducted by the HSE in 2011 of the CRM Regulations 2007 found that the model of risk management entrenched in those regulations had become standard practice for the more organised part of the construction industry. For this to also be present in the smaller end of the industry the case emerged for changes to be made to the regulatory framework and as of April 2015, CDM Regulations 2015 are in force.

What are the key changes?
The key changes to the CDM include:

  • CDM 2015 applies to all projects irrespective of whether they are notifiable or not;
  • Replacing the role of the CDM Co-ordinator with Principal Designer, who must now co-ordinate the pre-construction phase;
  • Increasing the scope of the CDM Regulations with the application of CDM 2015 to domestic clients (those not acting in the course or furtherance of business, whether or not for profit) and in some cases easing a domestic clients compliance burden;
  • Enhancing the role of the client by placing with it key health and safety responsibilities such as notifying the HSE of a project, appointing a Principal Contractor/ Designer where more than one contractor is on site and ensuring the Principal Designer complies with duties;
  • Changes to the HSE project notification threshold;
  • A simplified competence assessment including organisational competence; and
  • Replacing the Approved Code of Conduct with HSE Guidance

The CDM 2015 places duties on a range of duty-holders, although definitions of duty-holders are not exclusive. This is because the CDM 2015 anticipates that an individual may have many duties on a project so the role of the person is relevant in determining what duties that individual has and how the different parties duties work together.

Why the change?
In the consultation proposal in 2014, the HSE indicated a number of objectives for making these changes including to:

  • Maintain or improve worker protection;
  • Simplify the regulatory framework;
  • Improve health and safety standards on small construction sites;
  • Implement the Temporary or Mobile Construction Sites Directive (TMCSD) in a proportionate way;
  • Discourage bureaucracy; and
  • Meet better regulation principles.

What is the impact?
With the CDM 2015 in force, for all projects commencing after the 6th of April 2015 clients are under an obligation to ensure that they comply with all changes. With the role of clients being expanded this means they must understand their duties as provided for in the CMD 2015. In addition, designers and contractors have to ensure that they get to grips with the new requirements, which includes refusing work if the client does not understand their duties and when dealing with domestic clients fulfilling some of the client’s duties.
With projects that have commenced before and continue after the 6th of April 2015, there are transitional provisions in place, which duty holders must understand and apply (Reg 37 and Schedule 4 CDM 2015). The transitional provisions for projects involving more than one contractor (a sub-contractor is defined as a contractor for the purposes of CDM 2015) include:

  • Where a CDM Co-ordinator has not been appointed, if the construction phase has not started the client must appoint a principal contractor as soon as practicable. If the construction phase has started, the client may appoint a principal designer if they wish to do so. If the client does not, the principal contractor is responsible for preparing the health and safety file, or
  • Where a CDM Co-ordinator has been appointed, the client must appoint a principal designer within 6 months (i.e. by 6th October 2015).
    With the introduction of the CDM 2015 there are also changes to the JCT standard forms of contract and the updated form of contract should be used so that responsibilities are correctly described and allocated.

What action to take now?
All duty holders should familiarise themselves with the changes that have been introduced in the CDM 2015. As the first step, this will ensure that they can then consider modifying their conduct accordingly in respect of an on-going project or one that is due to begin after the 6th of April 2015. Due to the nature of the changes brought in by the CDM 2015, it may also be necessary by all duty holders to review their internal processes such as guidance manuals and amend accordingly to reflect the changes that have been brought in. The HSE has produced Draft Guidance on these changes and it is likely that further guidance and/or amendments will follow, which can be helpful.

For further advice on complying with CDM 2015 or construction projects in general please contact Daniel Milnes and for any construction disputes please contact Robin Stephens. If you would like further details on the duties and responsibilities under the CDM 2015 please contact us.

Nat Avdiu

About Nat Avdiu

Nat Avdiu is a Paralegal in the Contracts and Projects team at Forbes Solicitors. Nat provides updates for clients on a range of issues including: governance, data protection and freedom of information, procurement and charity law.
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