Projects started before 6 April 2015
For projects that were started before 6 April 2015, and are going to continue beyond that date, the following straightforward transitional arrangements apply:
- any pre-construction information, construction phase plans or health and safety files provided under the 2007 Regulations ("CDM07") will be recognised as meeting the equivalent requirements under CDM15;
- a project notified under CDM07 is recognised as notified under CDM15; and
- a principal contractor appointed under CDM07 is considered to be a principal contractor under CDM15.
So in respect of these three elements we don't have anything to be concerned about at this precise moment in time.
However, the following further transitional arrangements do require some thought:
- if the construction phase hadn’t started by 6 April and a CDM Co-ordinator ("CDMC") hadn't been appointed, then the Client has to appoint a Principal Designer ("PD") as soon as practicable;
- if the CDMC had already been appointed, then the Client must appoint a PD by 6 October 2015; and
- until such time as a PD is appointed in accordance with the transitional arrangements, the CDMC must comply with the duties contained in Schedule 4 of CDM15.
As ever with the introduction of any legislation, and especially where there is a grace period, there is a tendency to try to do things as we've always done them: Keep it simple until we have to change it. But in truth, the transitional arrangements only apply for a short period of time, and any Clients who have projects underway with a CDMC appointed need to be turning their attention very quickly to getting a PD appointed before October.
What is a Principal Designer?
A key point to note is that a PD is not a lead designer. In this respect, the phrase "principal designer" is not very helpful.
A Principal Designer under CDM15 is an organisation or individual responsible for controlling and managing the health and safety risks during the pre-construction phase of a project. It seems clear from the CDM15 that the PD must be appointed by the Client.
More specifically, the PD must:
- plan, manage, monitor and coordinate health and safety during the pre-construction phase;
- help and advise the Client in collating pre-construction information;
- provide all designers and contractors with the information they need to carry out their duties;
- work with any other designers to eliminate foreseeable health and safety risks or (as a minimum) take steps to reduce or control those risks;
- ensure that everyone involved in the pre-construction phase communicates and cooperates with each other; and
- liaise with the Principal Contractor as regards any risks that need to be controlled during the pre-construction phase.
Who can be a Principal Designer?
Under CDM07, if the Project was "notifiable" then the Client appointed a CDMC. That was often a separate appointment from the rest of the professional team. The HSE has, however, expressed the view that the PD is not intended to be a separate professional, distinct from the design team. HSE has said that after the transitional period, a CDMC who is not a designer with control of the pre-construction phase should not be the PD.
It is interesting at the moment to observe how former CDMC organisations are adapting their offerings to take account of this. In many instances, the lead consultant (eg the architect) is taking on the PD role, and then sub-consulting that out to a CDM specialist (eg a CDMC under the CDM07 regime).
What does a Client need to do?
This is the important question for most of Morton Fraser's clients.
Firstly, it is important to recognise that CDM15 imposes an enhanced role on the Client as compared with CDM07 - reflecting the inevitable, gradual, shift of key health and safety responsibility onto the Client.
For commercial projects, the Client duties apply in full to the Client. Commercial Clients must make suitable arrangements for managing their project so that all involved can manage health and safety risks in a proportionate way.
These arrangements would include:
- appointing designers, contractors, PDs and Principal Contractors and ensuring they have the skills, knowledge, experience and organisational capability;
- allowing sufficient time and resources for each stage of the project;
- making sure that any PD and Principal Contractor carry out their duties in managing the project; and
- making sure suitable welfare facilities are available.
It is also the Client's responsibility to:
- maintain and review the management arrangements for the entire duration of the project;
- provide pre-construction information to every designer and contractor;
- ensure that the contractor / Principal Contractor prepares a construction phase plan before the phase starts; and
- ensure that the PD prepares a health and safety file for the project, and that this is regularly revised and made available to all.
What projects are covered?
CDM15 affects nearly every construction, engineering or development project carried out in Great Britain. There is no exclusion for smaller projects or domestic projects.
As regards domestic projects (eg where an individual is having work done to their home), the Client duties normally pass automatically to the contractor or principal contractor, but they can also pass to the PD if there is a written agreement in place to that effect between the domestic Client and the PD.
The role of Principal Contractor applies unless it is a single contractor project. Given that "contractor" in this context includes sub-contractors, almost every commercial project will require the appointment of the main contractor as Principal Contractor for the purposes of CDM15.