CDM Revision Heavy Burden for Principal Designers

 

The HSE has announced the outcome of the CDM revision consultation which closed on 6 June 2014. Key changes to the Construction (Design and Management) Regulations 2007 include the proposed replacement of the CDM co-ordinator role with that of the Principal Designer, the removal of the ‘domestic client’ exemption and a shorter “signposting” Approved Code of Practice.The immediate concern is that a heavy burden will be placed on the Principal Designer (possibly a contractor, architect, engineer or other professional), who will be required to take on a myriad of additional duties, some of which go beyond the traditional ambit of the designer competency.Under the new proposals, duties will attach to the Principal Designer for the duration of the project, particularly in relation to liaison with the Principal Contractor.

Principal Designers need to understand the risks that arise where they retain legal duties under CDM and that they may be unable to contract out of these, even if a novation agreement is in place.While the results of the consultation suggested that CDM co-ordinators do not support the proposed changes to the Regulations, an unexpected consequence may be the rise of a support industry populated by former CDM co-ordinators when Principal Designers turn to them for advice.

Removing the domestic client exemption will cause certain duties to be discharged by the Contractor or Principal Contractor, or if the Client agrees, the Designer. Small contractors may struggle to comprehend the Client duties transferred to them, but the impact could be mitigated by the change to the notification requirements estimated to reduce the number of notifiable projects by just under half.  Even so, any benefit from that change may have to be balanced against the new requirement for construction phase health and safety plans “proportionate to the risks involved” on all projects.The proposal of a shorter signposting ACoP, supported by sector specific guidance, also risks a disjointed approach. The fact that the guidance was still in preparation at the time of the consultation was unhelpful and in any event the majority of respondents considered that the legal status of the ACoP was more authoritative than guidance.The intention behind the proposed changes was to embed standardised risk management throughout the industry including amongst smaller contractors.  However, there is concern that Designers and Small Principal Contractors will find it difficult to come to terms with the additional duties.  Furthermore, the stated aim of making the Regulations easier to understand for stakeholders may not have been achieved.