Managing health and safety in construction

Construction law expert, Graeme Roberts, reports on the new Construction (Design and Management) Regulations 2007, which come into force on 6 April 2007.

These regulations, introduced in 1995, have been heavily criticised for being unduly complex and bureaucratic: factors that have undermined their underlying health and safety objectives. Following industry-wide consultation, there have been significant changes and the new regulations (CDM 2007) come into force on 6 April 2007.

There are notable changes to the duties on both clients and designers when carrying out construction work. These revise and bring together the existing CDM 1994 and the Construction (Health Safety and Welfare) (CHSW) Regulations 1996 into a single regulatory package. They are supported by an Approved Code of Practice (ACoP), which provides practical guidance on complying with the new duties. (ACoP replaces HSG224).

The main aim of CDM 2007 is to integrate health and safety into the management of construction projects and encourage those involved to co-operate and co-ordinate with each other in order to:

• identify risks at an early stage
• discourage unnecessary bureaucracy
• improve the planning and management of projects from the outset
• target effort where it can do the most good in relation to health and safety.

The HSE states that the new regulations are ”intended to focus attention on planning and management throughout construction projects, from design onwards. The aim is for health and safety considerations to be treated as an essential, but normal, part of a project’s development – not an afterthought or bolt-on extra”.

Redefinition of roles in a project

The client

CDM 2007 redefines the roles played by key people involved in the construction process. The duty on the client is increased, making him more accountable and doing away with the role of client’s agent. The onus in all projects is on the client. He must take reasonable steps to put suitable and ongoing management arrangements in place to ensure health, safety and welfare on site. Also the design of any structure intended for use as a workplace must comply with the Workplace (Health Safety and Welfare) Regulations.

The primary purpose of abolishing the role of client’s agent is to remove the facility (available under CDM 1994) for the client to transfer his criminal liabilities to the agent.

Clients are not required to manage the work themselves but must ensure that others have arrangements in place that will control risks associated with the construction work.

If the project is notifiable under the CDM regulations, the client must appoint a CDM co-ordinator (formerly the planning supervisor), as well as a principal contractor (more detail below). These appointments must be made as soon as possible after design work or preparation for construction has begun.

If the client fails to make the appointments, he is deemed to be performing the role(s) himself.

The client must supply the CDM co-ordinator with design and pre-construction information concerning health and safety. He must also promptly provide all information needed to keep the health and safety plan up to date throughout the life of the project. Additionally, it is the client’s responsibility to ensure that the construction phase does not start unless and until the principal contractor has completed the construction phase plan.

The CDM co-ordinator

This role replaces the planning supervisor. The co-ordinator’s main role is to advise and assist the client in complying with his duties under CDM 2007. In particular, he is required to:

• assist the client with the appointment of competent contractors and designers
• advise on the adequacy of the other duty holders’ arrangements for controlling risks
• co-ordinate design work, planning and other preparation for construction
• liaise with the principal contractor on design changes during construction
• notify the HSE about the project
• produce or update the health and safety file.

The old planning supervisor role came in for criticism because there was little power to insist that deficiencies in health and safety arrangements be rectified. The new regulations place stronger duties on the client to make sure that the arrangements by the members of the project team are adequate. If the co-ordinator has concerns about any aspect of the arrangements, he can advise the client, who has both the power and the motivation to make sure that deficiencies are addressed.

The principal contractor
The primary duty of this role is to “plan, manage and monitor the construction phase”. Note that the obligation is to “monitor”, not “supervise”.

Other changes

CDM 2007 also contains a number of general provisions relating to health and safety for all projects, notifiable or not. One of these is a requirement that all those involved in the design or planning of construction work and the construction process itself, should take account of the principles of prevention contained in the Management of Health and Safety at Work Regulations 1999. There is also a requirement that all those parties involved in a project should co-operate and co-ordinate health and safety information.

Action required

It is essential that those involved in construction should familiarise themselves with the new Regulations and the accompanying ACoP.

Graeme Roberts works alongside our commercial property team to provide expert construction law advice. He specialises in all aspects of non-contentious construction law including the drafting and negotiation of building contracts, professional appointments and collateral warranties. A qualified solicitor and former partner in a City firm, Graeme is a member of the Society of Construction Law.

Contact graeme.roberts@willans.co.uk