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Risk of serious non-compliance by CDM 2015 project clients

The requirement for a client appointed Principal Designer (PD) under CDM 2015 is causing head scratching amongst clients, designers and contractors with some interesting variations in how the requirement is interpreted.

In some cases clients are retaining a detached third-party as PD (on the lines of the former CDM-C) rather than appointing a party engaged in design on the project in hand. This despite the HSE declared intention to “embed” the PD duty holder within the project design team.

So what are the implications?

Effective PD control is essential

A key defining characteristic of the PD appointment is that the person (usually a corporate body) appointed must be “a designer with control over the pre-construction phase (PCP)”.

The CDM 2015 definitions of “design” and “designer” are sufficiently broad to include most parties involved in construction projects. However, the requirement for PD “control” is more problematical and begs a number of questions, for example:

1. What is PD control?
2. How far does PD control extend?
3. What if others resist control by the PD?
4. What power does the PD have to secure the required control?

In the absence of further guidance from HSE project clients and others must apply common sense. We offer some initial thoughts below.

Client is the source of resources and authority

Control over the PCP implies power and the typical dictionary definition of control is “The power to influence or direct people’s behaviour”. However, the regulations do not provide explicit powers to the PD and hence the only possible source of authority is the client who appointed the PD.

The client will therefore need to be sure that the PD is given sufficient powers within the terms of their PD appointment. The client will also need to make clear what the PD can and should do in the event of a serious dispute over the extent of PD control.

One thing is sure. The PD responsibilities go well beyond those of the former CDM-C role by involving “control” over the PCP plus the planning, managing and monitoring of the PCP.

Appointments must be backed by sufficient fees

Some potential PDs have experienced reluctance by clients to match the PD appointment with commensurate fees.  This is dangerous territory for the client when lawyers advise that:

“… there should be a reference to payment for these extra (PD) services. Unless the principal designer is paid, a client will not be able to satisfy its obligation to “make suitable arrangements for managing a project, including the allocation of sufficient time and other resources” (Regulation 4(1)). Equally, it would be impossible for a principal designer to carry out the obligations of that role properly without spending time and effort on them”

Construction project clients risk serious non-compliance if the above issues are not considered and clarified at the outset. The client will need to address these issues at the time of PD appointment and take steps throughout the project to check that the PD is exercising effective control over the PCP.

Organisations formerly offering CDM-C services might quite legitimately be appointed as a project PD. However, HSE may be concerned if the actions exhibited by the PD are those of the stereotypical CDM-C with no evidence of behaviour that could be described as properly resourced “control” of the PCP.

This situation would leave both client and the appointed PD at risk of enforcement action and/or HSE Fee for Intervention charges.

The HSE Legal Guidance and CITB/HSE Industry Guidance provide some clarity as to what actions might comprise adequate control by the PD.

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 18th June 2015