By Mike Taylor, Santia Consulting Ltd
The fanfare of publicity which accompanied the introduction of the Construction (Design and Management) Regulations 2015 (CDM 2015) has died away, but since the April 6 launch, what’s actually happened?
Naturally, construction phase plans have been drawn up for each and every new project. Principal Designers have been appointed in all cases where more than one contractor has been engaged. Right..?
Ok, so that’s probably not what has happened, but having said that, are there any early indications that the construction sector has been struggling with the new legislation?
At this stage, it’s hard to tell – there are murmurings that the design community may not have welcomed its new responsibilities with open arms, but beyond that, things seem to have gone a bit quiet.
Of course, that will all change when the first prosecution under CDM 2015 takes place. Many people are looking for a steer on perceived grey areas within the law (for instance, can a construction phase plan for a low risk job be made up of existing information, or does it have to be an additional and distinct document?) and enforcement action may help to provide further clarification.
The question of whether the new regulations have brought about any unintended consequences is one which also requires answering. One of the main aims of CDM 2015 was to reduce the amount of paperwork generated, but it has yet to be established whether this (or indeed the opposite) has been achieved.
What are your experiences of CDM 2015? Has implementation been seamless or have there been significant problems since the law was introduced?
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I think CDM 2015 has caused a number of problems, especially for those that are involved with repairs/mainteance and other minor works. For those involved in large construction type projects there will be little change from the 2007 iteration.
The extent of the issues remain largely unknown because not many will put their hands up and admit non-compliance, whilst others are re-inventing the regulations to suit their purpose. That said, there is no doubt in my mind the new regulations are overly onerous and prescriptive, causing unnecessary confusion and additional bureaucracy.
The most contentious issue from my perspective is the role of Principal Designer. There is a distinct reluctance for term contractors to accept the role – for example, arguing that because the client provides the schedule of rates, they are in fact the PD. The counter argument is there may be a design input, but that hardly makes the client the PD. Unfortunately if the client does not appoint a PD, they become the PD by default – watch this space!
It would be interesting to see what, if any, change there is for domestic construction projects. My intuition tells me that nothing really has changed and as a rule domestic contractors are either unaware of the new duties or just ignoring them. I suspect that like in the above article, until there is a prosecution much of what CDM 2015 stands for will not be revealed.
In my experience as CDM-C for a variety of infrastructure construction projects, there was a rush to appoint a CDM-C and get projects on the board before the 6th April in order to utilise the transitional arrangements of schedule 4.
In some cases this was simply to buy enough time to get adequate management arrangements in place, in others it was simply to ensure that the projects got started in the “right way” before the PC was given the unrestircted “free hand”
of having a “1 size fits all” construction Phase plan that pays no attention to the site specific significant risks identified in the Pre-Construction Information. Some of these projects have now completed. Most have started “on site” and are at
the stage where come 5th October, the Health and Safety File template and any already completed “as-builts” can be handed to the PC to complete the H&S file by the time “snagging” ends. A few have finished the Design Phase but are
still awaiting the start of construction (no strict need for a PD), and a few are still at the design stage and it is this latter category that is the most problematic. Despite the advice to the contrary, the PD does not take on all the duties/tasks
formerly performed by the CDM-C and many Clients have been surprised by the additional statutory duties that have reverted to them. Clients have also been surprised by the fact that while there is no longer a statutory duty to review a
CPP, their common law duty (via due diligence etc.) to do so still remains. Clients have also been surprised to learn that while there is a duty on them to ensure communication, coordination and cooperation between all involved parties in a
project, certain parties only have a duty to “liaise” with each other (untested in court) and I can envisage an occasion where an incident involving failure of one of the 3 C’s between 2 parties who “liaised”, sees the Client in dock on their own.
No longer can Clients put a pot of money on the table and tell their appointees to just get on with it. CDM2015 has produced a lot of work for lawyers, both in redrafting contracts of appointment to “protect” the Client and in Tort actions. I also
await with interest Case Law rulings on the definitions of “adequate”, “liaison”and the areas of “competence” not covered by “skills, knowledge and experience” i.e. Ability. Plus of course without an ACOP in place, statutory compliance with
CDM 2015 will be experimental. I await 2018 with interest as that is when the first successful prosecutions for breaches of CDM2015 will begin to be published in court records. The direction most CDM-C’s would have preferred CDM2015 to
take (more involvement by them with the Construction phase) will be a requirement under civil law/due diligence on the Client and there is an opportunity for CDM-Cs (without Design “competence”) to act on behalf of the Client in a non-statutory
appointment as CDM-Advisors. Contracts of Appointment for all parties will need to be amended to give the CDM Advisors the “authority” to act on the Clients behalf, collecting Pre Construction Information, reviewing Construction Phase Plans and
Welfare provision, auditing the on site activities against the CPP, H&S inspections and investigations etc. These CDM advisors are likely to be joined on site by the auditors (with little construction or H&S experience) of those proliferated “Accreditation
schemes who used to “assure competence” who will now be focussed on “Instruction, supervision and training” and “skills, knowledge and experience”. We seemed to have gained on the swings and lost on the roundabouts withthis latest version of
CDM and the delays in publishing definitive guidance and the abrupt nature of the implimentation of the Regs. (over the Easter bank holiday) coupled with the subtly phrased but fundamental shifts from Criminal Law to Civil law (and the lesser burdens
of proof required) has delivered significant costs and inconvenience, required additional review and adaptation of documents and processes (many of which appeared to be working quite well) and shifted the main drivers for good health and safety
management back again to Tort and civil suits, counteracting therecent Fees for Intervention, and Increases in sentencing powers which had started to bring the employers focus onto Health and Safety legislation and away from the “elfansafetygawnmad”
myths propogated by Insurance liability and (fear of) negligence claims which promote a disproportionate and arbitrary approach to Health & safety management.
The main problem we’ve had with the CDM 2015 is, How does this effect us? We’re in the events industry and this question has popped up more times that I can count. I’ve asked external consultant companies of the specific requirements and have been direscted to the generic regs. We have now adopted the CDM regs for all events and ‘Mixed’ an event file to make it one complete document to send to clients/ venues.
It has been a struggle to find a way of making this work for us with the limited support online.