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What CDM 2015 designers must do when preparing or modifying designs

On 6th April 2015 the primary duty and objective of designers under the CDM Regulations remains substantively unchanged namely to, eliminate, reduce or control risk through design. However, the duty will become more absolute and demanding in terms of the risk avoidance actions required.

The CDM Regulation 2007 designer duty is qualified and allows the designer to take “due account of other relevant design considerations”. This critical qualification has been removed from CDM 2015 making it easier for the regulator to allege a ‘material breach’ of statute. This might thereby trigger a prosecution, enforcement notice or a Fee for Intervention invoice in respect of the designer.

The qualification is partially reinstated in that the HSE CDM 2015 Legal Guidance refers to ‘other factors’ which may influence the design e.g. cost, fitness for purpose, aesthetics and environmental impact.

However, the qualification, such as it is, is now relegated to Guidance status whereas breaches of law will be determined by reference to the wording of the Regulations and not the Guidance.

More effort required using same means

Does this really matter?

The change may be important in terms of the degree of effort required to meet the objective (risk avoidance) but should have little impact on the means designers adopt to comply and avoid risk through design.

The CDM 2007 Approved Code (ACOP) set out the actions required of designers. From 6th April 2015 this ACOP is withdrawn and replaced by the HSE Legal Guidance L153.

The practical guidance for designers is included at paras 75-93 of L153 and the key points are set out below.

Eliminating, reducing or controlling foreseeable risks through design

When preparing or modifying designs, a designer must take account of the General Principles of Prevention, and the Pre-Construction Information, with the aim, as far as Reasonably Practicable, of eliminating foreseeable risks.

Where this is not possible designers must take reasonably practicable steps to reduce the risks or control them through the design process, and provide information about the remaining risks to other dutyholders.

HSE stress that designing is a process that often continues throughout the project and the following questions should be considered when design is carried out:

• Can the problem (or hazard) be removed altogether? E.g. air con plant on a roof moved to ground level, so that work at height is not required for either installation or maintenance?;
• How can risks be reduced or controlled so that harm is unlikely or the potential consequences less serious? E.g. place the air con plant within a building on the roof, or provide a barrier around the entire roof?

If risks cannot be eliminated the designer should apply the principles below in deciding how to reduce or control the remaining risks – if possible, in the following order:

1. Risk – provide a less risky option e.g. switch to using components which are lighter in weight to reduce musculoskeletal disorders;
2. Exposure – make provisions so that the work can be organised to reduce exposure to hazards e.g. provision for traffic routes so that barriers can be provided between pedestrians and traffic; and
3. Information – ensure that those responsible for planning and managing the work are given the information needed to manage remaining risks e.g. information about loads that will be particularly heavy or elements of the building that could become unstable. This can be achieved through providing key information on drawings or within models e.g. Building Information Modelling (BIM).

The designer is expected to do:

“as much as is reasonable at the time the design is prepared. Hazards that cannot be addressed at the initial stage of a project may need to be reviewed later on during detailed design. On projects involving more than one contractor, the Principal Designer will lead in managing the review process. “

General Principles of Prevention (GPP)

The GPP provide the framework within which designers must consider their designs and any potential risks to health or safety which may affect workers, members of the public, those who may maintain or clean the building or use the building as a workplace.

Designs prepared for places of work also need to comply with the Workplace (Health, Safety and Welfare) Regulations 1992 so designs need to take account of factors such as lighting and the layout of traffic routes.

The HSE Guidance states at paras 83-84:

“Health and safety risks need to be considered alongside other factors that influence the design such as cost, fitness for purpose, aesthetics and environmental impact. Working with contractors (including principal contractors) involved in the project can assist in identifying the potential risks and ways in which they may be controlled.

Once the risks have been considered and taken into account, the level of detail in the information provided to those who need it should be proportionate to the risks remaining. Insignificant risks can usually be ignored, as can those arising from routine construction activities, unless the design worsens or significantly alters these risks”

Further HSE information on risk avoidance

The HSE Legal Guidance L153 states that further information on eliminating, reducing or controlling foreseeable risks is available on the HSE construction web pages Are You A Designer

This section of the website is currently (23 March 2015) based on CDM 2007 and will presumably be update before 6th April 2015.

The CDM Red, Amber and Green Lists (RAGs) at Annex E of the CITB Guidance are practical aides to designers on what to eliminate/avoid, and what to encourage and are unlikely to change.

CDM 2015 Information and Templates

See CDM 2015 Survey Results for the findings of our CDM 2015 Five Minute Online Survey.

We have published a great deal of further information and templates designed to support Clients, Designers, Principal Designers/Contractors and Contractors in meeting their duties under CDM Regulations 2015.

This article was posted on 23rd March 2015