The Health and Safety Executive has introduced revised regulations for the construction industry. Gillian Birkby considers them


The Construction, Design and Management (CDM) Regulations have become an integral part of design and construction work, but construction is still statistically a dangerous industry in comparison with other areas of the economy. The Health and Safety Executive (HSE) has therefore introduced revised regulations (CDM 2007), which came into force on 6 April 2007, in an effort to bring down the rate of accidents and ill health within the construction industry.



When the regulations apply

Domestic clients, meaning individuals who are not having the work done as part of their business, still have no duties, though their designers and contractors have obligations under CDM 2007. On every other kind of project, CDM 2007 will apply. Clients, designers and contractors all have duties, however small the project. Where the project is large enough to be notifiable to the HSE, there are extra duties: the client must appoint a 'CDM co-ordinator' (the successor to the planning supervisor) and a principal contractor; there must be a construction phase plan and, at the end of the project, a health and safety file that will be handed to the client. The criteria for a notifiable project are the same: any project that is likely to involve more than 30 days of construction work, or more than 500 person days of work.



Changes for all duty holders

Over the past 12 years, the HSE has seen far too much paperwork being used as a security blanket. The new approved code of practice (ACOP), which explains CDM 2007, is very clear on this subject: 'Any paperwork produced should help with communication and risk management. Paperwork, which adds little to the management of risk, is a waste of effort and can be a dangerous distraction from the real business of risk-reduction and management.'



HSE is looking for co-operation between all duty holders, who must also co-operate with anyone on an adjoining site. This covers not only situations where there are two neighbouring building sites, but also projects where the shell and core of the structure are constructed first and, while that work is being finished off, a tenant moves into part of it to fit out an area.



Pre-construction information

The pre-construction phase health and safety plan has now been renamed the pre-construction information - to be provided by the client on non-notifiable projects and via the CDM co-ordinator on notifiable projects.



Competence

There are express obligations on duty holders to appoint only those who are competent. No one should accept an appointment unless they are competent enough to carry it out. The HSE has taken note of requests for further guidance on assessing competence - this can be found in paragraphs 193 to 240 and appendix 4 of the ACOP.



Clients

A client can no longer appoint an agent to take on his liability (this is not the same as the client's agent under a Joint Contracts Tribunal design and build contract, which is a different, contractual appointment).



Where there is more than one client, they can still choose one of them to be 'the client' for the purposes of CDM 2007. If they do, all clients will still retain certain responsibilities: co-operation and the prompt provision of information in their possession relevant to health and safety.



The new emphasis for any project is on the client's management arrangements. Clients are not expected to manage the health and safety arrangements themselves, but to check that others are doing so. Clients must also state at the tender stage what minimum period they will give to the contractor between notifying him of his appointment and expecting him to start work onsite. There is still a duty not to allow work to start onsite until the health and safety plan (now called the construction phase plan) has been prepared.



The separate duties on developers have gone and developers have the same duties as clients.



Designers

Designers' duties are reworded but not significantly different. They have a duty to consider in their design the health and safety of construction workers and those affected by the construction work. However, they must not start design until the client is actually aware of his duties. Guidance for clients is being produced by the Construction Clients' Group and will be available on the Constructing Excellence website. The HSE will also publish guidance for clients. If a project is notifiable, designers must not commence work, other than initial design work, before the CDM co-ordinator is appointed.



An additional duty on designers is to take account of the need for safety in use, to comply with the relevant parts of the Workplace Regulations.



If design is carried out abroad, the person who has commissioned that design will be responsible for its compliance with CDM 2007 or, if that person is not established in Great Britain, the client will be responsible for it.



Health and safety file

If there is no health and safety file already, a new one must be created. If there is already a file, it must be updated before being handed to the client. On completion of a property transaction, therefore, the buyer should expect to receive one health and safety file for each structure, rather than several.



CDM co-ordinator

This role is significantly refocused from that of a planning supervisor. The CDM co-ordinator's basic obligation is to assist the client in understanding and implementing the client's responsibilities under CDM 2007. It is, therefore, good value for the client to appoint a CDM co-ordinator as soon as design starts. The CDM co-ordinator will also be involved in seeing that the design, including sub-contractor design, complies with CDM 2007. The CDM co-ordinator will check to see that the designers have considered the health and safety implications of their design. He will also be responsible for the production of the health and safety file, based on documents from others.



Contractors

All contractors, whether they are the principal contractor or not, must plan, manage and monitor the construction work under their control. They must tell their sub-contractors what the minimum period will be between their appointment and the start of their work onsite. Contractors, or the principal contractor if there is one, must ensure that there are suitable welfare provisions onsite throughout the project. The client must be satisfied that these arrangements are being made before allowing work to start on site.



Transitional provisions

There are comprehensive transitional provisions. It is not necessary for planning supervisors to be reappointed as CDM co-ordinators because this will happen automatically under the transitional provisions, even if the client does nothing.



The ACOP has useful information on how to comply with CDM 2007. A copy of the ACOP with CDM 2007 attached can be obtained from www.hsebooks.com for £15.



Gillian Birkby is a partner in the construction department at London firm Fladgate Fielder and was on the HSE working group which produced CDM 2007