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CDM REGULATIONS 2015: TOUGH TIME FOR DESIGNERS

HSE proposals for revision will result in more ‘absolute’ designer duty

IMPORTANT UPDATE JANUARY 2015: Regulations now published

The consultation document on proposals to revise CDM Regulations 2007 has received much attention as regards plans to abolish the CDM Coordinator role and apply duties to ‘domestic’ clients e.g. home owners procuring construction work.

The proposals regarding those businesses etc. defined as ‘designers’ have attracted very little comment. The Consultative document states:

“the proposals retain explicit duties on designers since their role is crucial in considering and reducing risks during project design and beyond”

There is no suggestion in the Consultative Document that designer responsibilities may have been tightened or changed in any significant manner.

Current designer duty heavily qualified

The main legal responsibility of designers under CDM 2007 requires that designers seek to avoid foreseeable risk during design, stating:

“every designer shall in preparing or modifying a design which may be used in construction work in Great Britain avoid foreseeable risks to the health and safety of any person – (a) carrying out construction work; (b) liable to be affected by such construction work; (c) cleaning any window or any transparent or translucent wall, ceiling or roof in or on a structure; (d) maintaining the permanent fixtures and fittings of a structure; or (e) using a structure designed as a workplace.”

The Regulations and current Approved Code qualify, in two ways, the extent to which designers must seek to avoid such risk by adding:

“The duties…..shall be performed so far as is reasonably practicable, taking due account of other relevant design considerations.”

The qualification “so far as is reasonably practicable” is widely used throughout H&S legislation. However, the ability of design practices to “take due account of other relevant design considerations” is an additional and wide-ranging qualification to the duty which permits consideration of cost and aesthetics etc. The current approved code explains further at para 124:

“designers have to weigh many factors as they prepare their designs. Health and safety considerations have to be weighed alongside other considerations, including cost, fitness for purpose, aesthetics, buildability, maintainability and environmental impact. CDM2007 allows designers to take due account of other relevant design considerations (bold added). The Regulations do not prescribe design outcomes, but they do require designers to weigh the various factors and reach reasoned, professional decisions”

Proposed designer duty more absolute

The current proposals revise the designer risk avoidance duty as follows:

“when preparing, or modifying a design the designer must take into account the general principles of prevention and any pre-construction information to eliminate, so far as is reasonably practicable, foreseeable risks to the health and safety of any person ….”

The qualification “taking due account of other relevant design considerations” has therefore been deleted from the proposals. This has the effect of making the designer duty far more onerous.

Anecdotal evidence suggests that HSE are adopting a more proactive and enforcement led stance in promoting safety through design. If and when the new duty comes into effect the regulator will have a much more powerful statute with which to pursue such objectives.

It is surprising that the proposed change has attracted so little attention from the design community.

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