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CDM REGULATIONS 2015: STAR ROLE FOR PD

CDM 2015 proposals may go beyond requirements of EU Directive

IMPORTANT UPDATE JANUARY 2015: Regulations now published

A key driver for revision of the CDM Regulations 2007 is the need to meet an EU requirement that the UK resolve current under-implementation of the relevant EU Directive.

UK legislation exempts ‘domestic clients’ from obligations under CDM 2007. The EU Directive does not allow such exemption and the current proposals are designed to resolve the issue by legislating for domestic client duties and then “deeming” those duties to the project architect and contractor.

The legislative change required regarding domestic clients has provided HSE with the opportunity to abolish the CDM Coordinator (CDM-C) function introduced in 2007. The function has been subject to a good deal of criticism, ridicule and allegations that the role adds little value to project health and safety outcomes.

So, what are the proposed changes to the CDM-C and how do they compare to the EU directive requirements?

Plan, manage, monitor and coordinate

The current proposal is to replace the client appointed project CDM Coordinator (CDM-C) with the new appointment of a CDM Principal Designer (CDM-PD). It is likely that under these proposals the client will often appoint the project architect practice as the CDM-PD.

The draft regulations require that the appointed CDM-PD must:

Plan, manage, monitor and coordinate the pre-construction phase of a project (taking into account the general principles of prevention) to ensure:

  • Health and safety the project is carried out without H&S risks, so far as is reasonable practicable (sfarp);
  • Pre-Construction Information (PCI) – assistance is provided to the client in preparation of PCI;
  • Risk assessment – identification, elimination, or control (sfarp) of foreseeable risks;
  • Cooperation – the cooperation of all persons working on the project;
  • Designer compliance – that designers comply with their duties in the regulations;
  • Health and safety file – is prepared containing information needed during subsequent construction work;
  • Pre-Construction information – provision to others in convenient form; and
  • PC Liaison – during construction and in particular regarding PCI.

This is a wide-ranging and demanding set of responsibilities. The aim is to place these important tasks at the heart of project management and in the hands of those with sufficient authority and influence to secure improved risk management through design.

‘Copy out’ of EU Directives

UK Government policy is that when EU directives are being implemented or changed the starting point must be ‘copy out’ of the directive so as to avoid or remove any ‘gold plating’ which might place a burden on the UK beyond the requirements of the directive.

How do the new CDM-PD proposals square with the ‘copy out’ principle?

The UK proposals are aimed at fulfilling the EU directive requirement for the appointment of a business or person to coordinate safety and health matters at the construction project “preparation stage”. The specific clause in the directive states:

Article 5 – Project preparation stage: duties of coordinators

The coordinator(s) for safety and health matters during the project preparation stage appointed in accordance with Article 3 (1) shall:

(a) coordinate implementation of the provisions of Article 4;

(b) draw up, or cause to be draw up, a safety and health plan setting out the rules applicable to the construction site concerned, taking into account where necessary the industrial activities taking place on the site; this plan must also include specific measures concerning work which falls within one or more of the categories of Annex II;

(c) prepare a file appropriate to the characteristics of the project containing relevant safety and health information to be taken into account during any subsequent works.”

The proposed CDM-PD responsibilities appear to go beyond the directive requirements (illustrated below) and beyond what is required of the current CDM-C role.

Implications

There is significant potential for the CDM-PD to become party to civil or criminal proceedings arising from site accidents through the overarching requirement to “plan, manage, monitor and coordinate” the project pre-construction phase so it is carried out without health and safety risks.

This duty mirrors the CDM Principal Contractor (CDM-PC) duty with respect to the construction phase where the regulator often takes the view that a breach of the regulations by a contractor is also a breach by the CDM-PC. It is likely that the CDM-PD will similarly be held to account for designer failings in future.

The system of Fee for Intervention is also in operation whereby HSE can issue invoices to cover the cost of dealing with what an Inspector regards as a ‘material breach’ of the law. The demanding nature of the proposed CDM-PD duty will help the regulator sustain such an opinion in respect of CDM-PD actions.

The proposed changes therefore present a substantial challenge for those design practices assuming CDM-PD appointments from April 2015.

There is also an opportunity for the CDM-PD to further encourage and support contributions made by designers to reducing and managing health and safety risks on UK construction projects.

Useful Links

We have published many other posts on how the requirements of CDM Regulations 2015 can be met by Clients, Designers, Principal Designers/Contractors and Contractors.

CLICK HERE to view the full range of free information available.

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