Out With the Old and in With the New - CDM 2007: What You Need to Know [ 24 Apr 2007]

(Construction and Engineering )

The Construction (Design and Management) Regulations 1994 (the "1994 Regulations") have been replaced. Instead, and with effect from 6 April 2007, the imaginatively named Construction (Design and Management) Regulations 2007 (the "2007 Regulations") are in force.

The existing Construction (Health, Safety and Welfare) Regulations 1996 are completely revoked. These Regulations dealt mainly with health, safety and welfare requirements on site during the construction phase and have now been incorporated as Part 4 of the new CDM 2007 Regulations, with little change.

The 2007 Regulations have been introduced to reduce administration and bureaucracy and improve safety.

Projects fall into two categories; those which are notifiable and those which are not. A project will be notifiable if the construction phase is likely to involve more than 30 days or 500 person days of construction work.  Nearly all commercial projects are likely to be notifiable.  Part 3 of the 2007 Regulations contains the following, which, amongst other things, applies only to notifiable projects.

• An obligation to appoint a CDM co-ordinator and a principal contractor. The CDM co-ordinator must be appointed as soon as is practicable after initial design work or other preparation for construction work has begun.  Note that until these appointments are made, the client takes responsibility for their roles.
  
• An obligation to promptly provide a pre-construction information pack to the CDM co-ordinator.
  
• Not to commence work without a construction phase plan and site welfare facilities being in place.
  
• Designers may not commence work until a CDM co-ordinator has been appointed.
  
• Contractors cannot commence work unless they have been provided with the names of the CDM co-ordinator and principal contractor, he has been given access to the construction phase plan and notice of the project has been given to the Health and Safety Executive.
  
• Notice of the project is given to the Health and Safety Executive, or, if the project involves construction works to a railway, to the Office of Rail Regulation, by the CDM co-ordinator as soon as is practicable after his appointment.

So what are the key differences from the 1994 Regulations?

• The planning supervisor has been replaced with a new health and safety CDM co-ordinator. The CDM co-ordinator will undertake a more hands-on and involved approach to health and safety issues than the planning supervisor under the 1994 Regulations, whose role was more "supervisory" in nature.  For example, under the 2007 Regulations, the CDM co-ordinator has express obligations placed on him to prepare the health and safety file.  Under the 1994 Regulations, there was no express requirement on the planning supervisor to prepare the health and safety file. The planning supervisor's obligation was to ensure the health and safety file was prepared. There are also obligations on the CDM co-ordinator to facilitate good communications between the client, designers and contractors and to ensure that all relevant pre-construction information is provided in a timely fashion to those who need it. Finally, the CDM co-ordinator will assist clients with the task of assessing whether the designers and contractors and principal contractors proposed for appointment are competent.
  
• To prevent clients from transferring their statutory liabilities to an agent, it is no longer possible to appoint a client's agent. However, where multiple clients exist for a project, they can make a written election electing one of them to be the "client" for the purposes of the 2007 Regulations. The elected client must comply with all of the 2007 Regulations. Clients who have been party to that election but are not to be treated as the client under the 2007 Regulations need only comply with limited obligations. These obligations are to provide information and documents in their possession to those engaged in the construction works.
  
• The client's role is central to the 2007 Regulations and the client's responsibilities are increased.  The client's general duty is to ensure that suitable project management arrangements are in place which will allow the construction works to be carried out safely.  The client must ensure that sufficient time and resources are allocated throughout the management of the project to those (including the client himself) with duties under the Regulations so that compliance with those duties is satisfied.  A pre-construction information pack must be provided by the client to every designer of a "structure" and every contractor appointed by the client. The construction phase cannot start unless suitable welfare facilities (such as provision of washing facilities, drinking water, changing rooms/lockers and rest facilities) are in place.
  
• The pre-construction information pack referred to above is new.  It replaces the old pre-tender health and safety plan. All designers and contractors who may bid for work in connection with the project must be provided with pre-construction information.  This means that the client must assemble such information at a very early stage of the project and add to the information pack as the project progresses so that the most up-to-date information is handed over at the relevant times.  Pre-construction information must include reference to the pre-construction period allocated to the project during which planning and preparation for the construction work can be carried out.
  
• There are four general duties that must be complied with by each of the five types of duty holder (as opposed to specific duties attributable to each category of duty holder independently). The types of duty holder are clients, designers, contractors, CDM co-ordinators and principal contractors and the general duties apply whether or not the project is notifiable. These general duties are to:
  
• address competence (no person shall appoint  a duty holder unless he has taken reasonable steps to ensure the person to be appointed is competent and no person may accept such appointment unless he is competent) which means health and safety competence and not competence in relation to other aspects of design or construction competence;
  
• co-operate (duty holders must seek the co-operation of others and actively co-operate with others to allow all duty holders to meet the requirements of the 2007 Regulations together);
  
• co-ordinate their activities with each other and ensure, so far as reasonably practicable, the health and safety of those carrying out construction work and those affected by construction work; and
  
• apply the principles of prevention contained in the Management of Health and Safety at Work Regulations 1999 (these include avoiding risks and evaluating risks that cannot be avoided, combating risks at source, adapting work to the individual and reducing monotonous work and ill effects on health, giving collective protective measures priority over individual protective measures, adapting to technical progress, replacing the dangerous with the non-dangerous or less dangerous, giving appropriate instructions to employees and developing a coherent overall prevention policy).

The 2007 Regulations apply to projects which commenced before 6 April 2007, although there are certain modifications that apply that are contained in transitional provisions. For example, projects where a client's agent has been appointed may continue to completion and where deadlines for appointing a CDM co-ordinator and principal contractor have been missed under the 2007 Regulations, the client must appoint them as soon as practicable.

It is important that all duty holders understand the 2007 Regulations and how the transitional provisions may affect them. In-house documents and standard forms will need updating to refer to the 2007 Regulations and deal with changes which have been brought into effect, for example, differences in terminology.  In terms of project management, timing and the provision of information, previous procedures used may need to be revamped.

Criminal sanctions apply to a breach of the 2007 Regulations, through the Health and Safety at Work etc. Act 1974 and there may also be liability under the civil law.