Out-Law News | 12 Jan 2015 | 2:18 pm | 2 min. read
Sean Elson of Pinsent Masons, the law firm behind Out-Law.com, urged clients, designers and construction firms to make themselves aware of the changes ahead of their implementation on 6 April, as "only very limited transitional arrangements" were available. The draft guidance, published by the Health and Safety Executive (HSE) alongside the final regulations, could change slightly before the regulations receive parliamentary approval, but the "headline" changes would remain the same, Elson said.
Among the documents published by the HSE at the end of last week were the final regulations, official 'L' series guidance and industry guidance for each of the five dutyholders under CDM and one for workers. The industry guidance was produced by groups set up by the Construction Industry Advisory Committee, and is intended to provide smaller businesses with practical guidance on what actions are required of them.
"The headlines from the changes include the replacement of the CDM co-ordinator role with that of a 'principal designer', and that many of the obligations imposed by CDM will no longer be determined by whether the project is notifiable to the HSE," Elson said.
"The intention of the HSE is for CDM 'clients' to take greater responsibility in respect of the CDM duties imposed on them, and the new regulations should be considered carefully by those who are responsible for commissioning construction works," he said.
The existing CDM Regulations, which came into force in April 2007, will remain applicable until 6 April 2015. However, any existing projects will become subject to the new regime from this date although a six-month transitional period will apply. The regulations implement some of the requirements of the EU's Temporary or Mobile Construction Sites (TMCS) Directive, and stipulate minimum standards of health, safety and welfare provisions during the construction phase of a project.
The biggest change to be introduced by the 2015 regulations is the removal of the need for a standalone CDM coordinator, with responsibility for coordination with the requirements of the regulations instead being assigned to the 'principal designer' within the project team. The duty to assess "competence" will be replaced with a new requirement for employers to provide "information, instruction, training and supervision"; and the existing Approved Code of Practice (ACoP) will be replaced with tailored guidance. The new regulations also extend the CDM regime to include "domestic" clients for the first time.
Once in force, the 'principal designer' will become responsible for implementing the requirements of the TMCS Directive including pre-construction coordination. The client's duty to appoint a principal designer and a principal contractor will be triggered where there is more than one contractor, or it is reasonably anticipated that there would be more than one at any time. If the required appointments are not made then the client would be expected to fulfil these roles itself, unless the client is a 'domestic' client in which case these roles will be deemed held by the first designer and contractor appointed in the pre-construction and construction phases.
The HSE said that projects due to start before the entry into force of the new regulations that had not yet appointed a CDM coordinator must instead appoint a principal designer "as soon as it is practicable". Those that had already appointed a CDM coordinator would have until 6 October to replace this appointment with a principal designer, unless the project would finish before that date. CDM coordinators should comply with the duties contained in Schedule 4 to the new regulations, rather than the duties of principal designers, until the new principal designer was appointed, the HSE said.