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Construction (Design and Management) Regulations 2015

By Ben Derrington, Partner, Regulatory Corporate Crime department

On 6 April 2015, the Construction (Design and Management) Regulations 2015 came into force. The Regulations revoke the Construction (Design and Management) Regulations 2007 and result in a considerable reform of health and safety requirements in the construction context.

The Regulations apply to almost all construction sites, both commercial and domestic. There are very few exceptions (limited to mineral extraction), so almost everyone involved in or advising on construction issues needs to be aware of the Regulations and the key changes they make.

Framework of the Regulations

The Regulations are structured as follows:

  • Part 1 deals with introductory matters and definitions;
  • Part 2 sets out the duties of the ‘client’;
  • Part 3 deals with health and safety duties, including both general duties and duties that fall on the roles defined within the act, specifically:
    • Designers;
    • Contractors;
    • Principal designers; and
    • Principal contractors.
  • Part 4 provides general requirements for all construction sites.

The material changes

Parts of these Regulations remain largely unchanged from the 2007 regulations. For example, Part 4 (general requirements for all sites) has few substantial amendments and the duties of a contractor remain relatively similar. The following issues, however, represent major changes:

  • The role of CDM co-ordinator no longer exists and its duties have been reallocated;
  • ‘Principal designer’ is a new role created by the Regulations. Principal designers will be required to plan, manage and monitor health and safety while a project is planned. This will include highlighting any design aspects that create a foreseeable risk, eliminating or controlling these risks as far as possible, and producing and maintaining a health and safety file;
  • The Regulations now apply to a much wider range of clients. Previously, the construction site had to relate to a project for a client acting in “the course or furtherance of business.” This is no longer required;
  • Clients are now required to appoint a principal designer and principal contractor for any work involving multiple contractors. They are also under a duty to notify the HSE about projects of a certain size;
  • A ‘domestic’ (i.e. non-commercial) client’s duties are generally reallocated to contractors and/or designers. They can, however, still be liable for matters that they have “retained control over”.

Scope – domestic and non-domestic clients

One of the larger changes in the Regulations is their application to a far wider scope of construction projects, to include domestic clients. In the new Regulations, ‘client’ is simply defined as “any person for whom a project is carried out.”

Previously, an individual who had employed contractors or designers to undertake a project other than in the course of a business (e.g. to renovate their own home) could safely ignore the provisions of the 2007 regulations. Now, almost any individual who instructs a contractor or designer will potentially be required to adhere to the duties set out in the Regulations and therefore exposed to liability.

Some of the duties of a client are not overly onerous and are set out relatively clearly in Part 2 of the Regulations. Very broadly, duties include:

  • Management oversight: ensuring that sufficient time and resources are allocated to allow works to be carried out (as far as is reasonably practicable) without risks to health and safety, that arrangements are made for safe working practices and ensuring that these arrangements are reviewed; and
  • Designer/contractor oversight: taking reasonable steps to ensure that a principal designer and/or contractor adhere to their own duties.

Nonetheless, there are a number of more specific duties, which will require knowledge of the detail of the Regulations before they can be met. For example, a client must:

  • Appoint a principal designer and a principal contractor when multiple contractors will be engaged;
  • Ensure that a health and safety file and construction phase plan is drawn up by a designer and contractor respectively in advance of the project; and
  • Notify the HSE in writing of any project over a certain size, defined by Regulation 6(1) (a) as projects that “last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or (b) exceed 500 person days.”

These appointment requirements represent a real trap for an uninformed client, who may be entirely unaware of their duties under the Regulations and therefore unable to fulfil them. Likewise, in day to day practice, the need for appointments in writing may be overlooked or forgotten. A particularly harsh effect arises from the failure to appoint a principal contractor or designer in writing. Under Regulations 5(3) and 5(4), the client must then fulfil (and therefore would be liable for breaches of) the duties that would normally apply to the principal designer or contractor. In short, a small technical failure would expose a client to a vast range of additional duties and liability.

Domestic clients

There is a degree of respite for so-called domestic clients, i.e. any client for whom a project is being carried out that is not in the course or furtherance of their business. Regulation 7 states that, where the client is domestic, some of the duties that would normally fall on the client must instead be carried out by a contractor or designer, depending on the structure of the project. Regulation 7 will also deem contractors and designers to be principal contractors or designers when a domestic client fails to do so expressly.

Nonetheless, this is not a complete form of protection. Firstly, the distinction between a domestic and non-domestic client will inevitably suffer from grey areas. ‘Business’ is widely defined within the Regulations and includes “trades, businesses and other undertakings (whether for profit or not).” This wide definition seems likely to catch charities, not-for profit clubs and similar groups. ‘Course or furtherance’ of business is also not defined in the Regulations and is open to interpretation; it may be the case that a house renovation that includes the extension of a home office would fall within the remit of the Regulations.

Draft guidance provided by the HSE (paragraph 53) suggests that they will regard any work done in connection with a business as falling within the Regulations – there is apparently no suggestion that the ‘business’ element must be a major or even significant part of the project.

Secondly, even if a client is certainly domestic, liability can still arise under the Regulations. By way of an example, Part 4 of the Regulations sets out standard safety provisions that apply to all construction sites. Normally, a domestic client would not be obliged to comply with these requirements, which would generally be dealt with by a contractor. Nonetheless, a domestic client must comply with the requirements of Part 4 so far as they relate to any matter “within the client’s control.”

Again, ‘control’ is not defined in the Regulations. Because of this, there is a grey area where domestic clients may unwittingly find themselves subject to duties they believed had been delegated to others. Within other areas of health and safety regulation, control is often widely defined. In the context of the Provision and Use of Work Equipment Regulations (3.3.ii), the Regulations apply to any person who has control (to any extent) or work equipment. Control has, in case law, been extended as far as any equipment that required the permission of the owner as to when, by whom or how it was used. If a similarly broad definition is applied to these Regulations, domestic clients relying on the exemption could rapidly find themselves brought back into an exposed position.

The issue is also relevant for contractors and designers, as different clients will retain or dispose of duties depending on their domestic or non-domestic status. Without certainty as to the status of their client, designers and contractors will, in turn, lack certainty as to their own duties. Any party without a clear picture of the structure of a project and where duties will lie would be well-guided to seek further information and legal advice.

Finally, domestic clients should be aware that their exposure to claims in negligence has potentially been raised as a result of these Regulations. While in many cases breach of statutory duty is no longer a cause of action itself (Enterprise and Regulatory Reform Act s69), statutory duties may still influence the existence of a duty (or the reasonableness of behaviour) in negligence claims. The imposition of a number of positive duties via these Regulations may result in a higher expectation of ‘reasonableness’ in the common law context and may therefore lead to personal injury claims against domestic clients that would not have arisen in the past.

Out with the old and in with the new: CDM co-ordinators and principal designers

Once the Regulations come into force, the role of CDM co-ordinator will no longer exist. The role of principal designer will broadly replace the position but it would be wrong to suggest that the duties of a CDM co-ordinator have simply transferred over. A principal designer can be any designer with control over the pre-construction phase of a project. Principal designers will have a central role from the very beginning of a project, with particularly heavy oversight of the pre-construction phase (Regulation 5.1.a ). Regulation 11 sets out the key duty of the principal designer, in that they must: “plan, manage and monitor the pre-construction phase, and co-ordinate matters relating to health and safety […] to ensure that, so far as is reasonably practicable, the project is carried out without risks to health and safety.”

Under Regulation 12, the principal designer must also prepare a health and safety file during the pre-construction phase (Regulation 12.5) for projects that involve more than one contractor. The health and safety file must be: “appropriate to the characteristics of the project, which must contain information relating to the project which is likely to be needed during any subsequent project to ensure the health and safety of any person.”

This file must then be reviewed and updated throughout the life of the project and passed on to the client at the end of the project (Regulation 12.6/12.10). ‘Health and Safety file’ is unhelpfully defined as “a file created under Regulation 12.”

The HSE guidance provides further detail – the file is essentially intended to be a future-proofing document for later amendments to (or demolition of) the project. The file should include (among other things) information as to what work has been undertaken, structural composition, what hazards exist or have not been removed (e.g. asbestos or hidden cabling) and any other relevant information to allow a future contractor to work safely.

In light of the above, a designer should be cautious in accepting the role of principal designer and should ensure they are properly prepared. Designers should not assume that their existing policies and procedure will be sufficient to act under the new Regulations, and should consider undertaking a review of their business. Designers may wish to take legal advice as to what changes are necessary and what new duties they may face, especially if they are likely to have substantial control over the pre-construction phase of a project.

As a final note, designers need to be aware that they can unwittingly become a principal designer without expressly accepting the role. Normally, if a client fails to appoint a principal designer, the duties will fall upon the client. Notwithstanding that, if a domestic client fails to appoint a principal designer, a designer who is “in control of the pre-construction” may find themselves deemed to be a principal designer by Regulation 7.

To manage their risk exposure, designers should ensure that they make all necessary enquiries about the structure of a project (and their role within it), as this will be necessary to obtain a clear picture as to their duties. Designers should also revisit their insurance arrangements to ensure that any additional duties they assume (willingly or otherwise) will not face a coverage gap in the event of an expensive claim. Existing public liability or professional indemnity coverage may not be sufficiently broad to cover the duties a principal designer may face or criminal defence costs in the event of an HSE investigation.

Existing projects and transition

A transitional period runs from 6 April 2015 to 6 October 2015, allowing existing projects the ability to convert to the Regulations.

Some projects should already have changed to comply with the Regulations. Projects that entered the design phase before 6 April 2015 – but where construction has not begun and where a CDM co-ordinator has not been appointed – must appoint a principal designer as soon as practicable.

Other projects will have six months to appoint a principal designer, but would be well advised to prepare for the new Regulations well in advance. Even where a project can maintain an appointed CDM co-ordinator until 6 October 2015, the CDM co-ordinator will be subject to a tranche of additional duties (Schedule 4 Regulation 5) under the Regulations as part of the transition mechanism.

Summary

The impact of the new Regulations will be mixed: much will remain the same in the context of construction Regulation but plenty will change. There will be an array of new and costly pitfalls for the unaware, which could lead to expensive discussions with the HSE – and potentially prosecution.

You can read a case study here and find out more about Ben Derrington here.

If you would like any further information or advice in relation to these Regulations or related issues, please contact Ben Derrington, Regulatory Corporate Crime Partner on 0117 904 6319 or bderrington@lyonsdavidson.co.uk.

 

Posted on Jul 6th, 2015 by Lyons Davidson