Revised regulations may pose dilemma for CDM ‘Principal Designers’
Solicitor Ann Metherall of Burges Salmon has highlighted potential issues for designers under the long-awaited CDM 201x. See below.
The Consultation Document is expected to propose scrapping the CDM Coordinator role and placing project preparation stage coordination with the new position of ‘Principal Designer’ (PD). The HSE consultation is now expected to start in April 2014.
Ann Metherall suggests that design practices anticipating assuming the PD role should review their health and safety skills and training in advance of changes to the CDM Regulations.
Industry guidance will explain Principle Designer duties
A CDM Industry Guidance Steering Group is working on “a suite of industry guidance” aimed at smaller businesses which includes guidance on the role of the proposed Principal Designer under the new regulations.
HSE state that the Group “faces a number of challenges” including time constraints adding that:
“when public consultation on new Regulations commences, further iterations of the guidance will be needed to ensure it is consistent with the rest of the planned suite of guidance and the proposed CDM ‘L’ series publication.”
The Steering Group programme of work anticipates the new CDM Regulations coming into force in April 2015 and is planning for the release of all Guidance by 31 October 2014
Designers may be unwilling or unable to fulfil Coordinator role
“The recent case of MWH UK Ltd v Wise  EWHC 427 (Admin) has highlighted some issues that may result from directing the pre–construction co-ordination role away from CDM Co-ordinators to a Principal Designer.
In MWH, the court reiterated that one of the CDM Co-ordinator’s duties is to check any pre-construction information and to advise the client regarding any gaps in that information. In this case, MWH UK Limited had failed to properly advise the client regarding the risk of the presence of asbestos and the absence of an asbestos survey.
The court also held that the CDM Co-ordinator was the key safety advisor at the pre-construction stage of the project and was expected to be able to identify the nature and level of detail of the hazards to be addressed.
The judge emphasised that the CDM Co-ordinator was not expected to have the expertise to make a detailed assessment of the hazards, but was expected to have sufficient expertise to understand whether they had been addressed, which was a matter of fact and degree in each case.
This case will undoubtedly raise concerns amongst design professionals who, under the current proposals, will be required to fill the role of Principal Designer.
Although the set of duties which will make up the role of Principal Designer are yet to be explicitly defined, it is clear from MWH that there are obligations currently performed by a CDM Co-ordinator that many designers would be unwilling or perhaps unable to fulfil.
Design professionals might consider using the continued delay in introducing new CDM regulations to review their health and safety skills and training to identify the duties they are willing and competent to take on when the changes to CDM arrive.