A guide to making the transition from CDM 2007.

1. Construction Law Masterclass 2015:
The Construction (Design And Management)
Regulations 2015 – a practical guide to the
transition
14 April 2015
Louise Forbes
louise.forbes@olswang.com | +44 20 7067 3632 | @forbes_louise

2. Why the change?
• Reduce perceived layers of bureaucracy in the management of health and safety
on site
• Improve the link between design and health and safety at the pre-construction
phase
• Ensure smaller projects (including domestic projects) are effectively managed
from a health and safety perspective
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3. Significant changes
Notification
• Projects exceeding 500 person days or "longer than 30 working days"
• With "more than 20 workers working simultaneously"
• This should reduce the number of notifiable projects
Approved Code of Practice
• ACoP has been abolished
• To be replaced with new, shorter guidance
• Unclear yet what this guidance will look like, but the HSE intends that the
guidance will be written in clearer English
• Query whether guidance will have same legal standing as ACoP which was
considered an authority for industry standards
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4. Construction phase plans
• Written construction phase plans now required for all construction projects
• Additional work which has not previously been required on projects that are not
notifiable
Domestic clients
• The Regulations now apply to all "clients", namely "any person" for whom a
construction project is carried out
• Domestic clients will be able to delegate the majority of their duties to a principal
designer or principal contractor
• Default provisions have been put in place if a domestic client fails to make the
relevant appointments – the designer in control of the pre-construction phase will
be the principal designer and the contractor in control of the construction phase
will be the principal contractor
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5. ‘Principal Designer’
• CDM Co-ordinator role replaced by ‘Principal Designer’
• This includes an element of influence over design
Duty to provide information
• A legal obligation for duty holders to provide information, instruction, training and
supervision
• Replaces the duty to assess competence
• The draft regulations do not specify the minimum standard required for
compliance
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6. Transitional provisions
Works which commenced before 6 April and completing before 6 October
• Provided a CDMC has already been appointed, the CDM Regulations 2007 will
continue to apply and a Principal Designer need not be appointed
Works which commenced before 6 April and will complete after 6 October
• If a CDMC has already been appointed, Clients have until 6 October to appoint a
Principal Designer
• Up until the Principal Designer is appointed the CDM Regulations 2007 continue
to apply
• Under Regulation 5(1)(a), any PD appointed must have “control over the pre-
construction phase of the design” (design prior to the commencement of the
works)
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7. • “Designer” is defined broadly and includes quantity surveyors and other
consultants who arrange for someone else prepare/modify a design for a
construction project
• Although bear in mind that quantity surveyors may not have sufficient control over
the pre-construction design for the purposes of the 2015 Regulations
• The Principal Designer must have the skills, knowledge and experience
necessary to fulfil their CDM role and Clients will be expected to take reasonable
steps to satisfy themselves that the PD has the requisite attributes
• There is a danger that the pool of designers who have been involved in the pre-
construction phase of design in a current project may not have the requisite
experience and may be unwilling to accept the extra responsibilities
• Where they are willing but inexperienced, Clients should ensure that the Principal
Designer retrains or recruits externally for an appropriately experienced candidate
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8. After the Principal designer is
appointed
• In the event that a Principal Designer is not appointed, the Client will take on its
responsibilities
• However the Regulations seem to suggest that this is possible to dispense with a
Principal Designer before the end of the construction period
Novation Issues
• Problems could arise in a design and build scenario where it is usual for
designers to be novated to the contractor
• Assuming the Principal Designer is a design consultant to be novated, the
obvious solution would be to appoint the Principal Designer under two
appointments (one for their design role, the other for their Principal Designer role)
and only novate the design appointment
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9. • In a design and build scenario Clients could consider appointing a contractor as
Principal Designer as well as Principal Contractor, provided that they fulfil the
Principal Designer’s criteria
• Contractors under traditional procurement routes are less likely to qualify as
designers and may not have sufficient “control” over pre-construction design
• A solution may be to appoint the contractor as Principal Designer under a
separate agreement before they are awarded the building contract (although
there’s a risk that the Client becomes stuck with the contractor as Principal
Designer if the building contract is eventually awarded to someone else)
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10. What next?
• Await short-form guidance
• Associated costs and resources for small projects may increase to meet the
requirement for the formal appointment of a Principal Designer and Principal
Contractor
• We may well see design consultants employing CDMCs in order to enhance their
Principal Designer credentials
• Time is likely to smooth out any uncertainties and allow for common industry
practice to be established
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