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CDM regs: Quick change

Major changes to health and safety regulations always attract criticism. The new CDM regulations are no exception.

Back in 1994, when the first version of the Construction (Design and Management) (CDM) Regulations were issued by the Health & Safety Executive (HSE), the construction industry was faced with a cultural revolution.

No longer could responsibility for health and safety be shuffled onto shoulders ill-equipped to bear it. Specific responsibilities were clarified and codified, not always to the industry’s liking. And the scope of the regulations extended all the way from inception, through design, construction, maintenance and ultimate demolition - a totally new way of looking at construction health and safety.

construction site

Construction site: There is some confusion about who is responsible for which aspects of safety under the 2015 CDM regulations

Over subsequent years the Regulations evolved, and so did the construction industry. Few would argue that they had no effect on health and safety: the industry’s safety record has improved significantly. A new profession emerged, that of the CDM co-ordinator, whose main function was advising the traditional parties in the construction process about how to comply with the regulations. The professional bodies generally supported the HSE in this endeavour, working closely with them, channelling the experiences of their members to the HSE to gradually improve and detoxify the regulations.

However, the latest version, CDM 2015, which came out in April this year, is facing serious criticism. Claims include the
fact that the new regulations were rushed out without adequate consultation, that the lack of an Approved Code of Practice (ACoP) will lead to confusion and potential legal action, and that responsible contractors will be driven out
of the domestic market.

“The final text of CDM 2015 was not published until 2 April and the regulations came into force on the 6th”

Alastair Beal, Thomason

A leading critic is consultant Thomason principle associate Alasdair Beal. “The final text of CDM 2015 was not published until 2 April and the regulations came into force on the 6th. They now extend to all construction projects, however small, so full CDM procedures will have to be applied to a vast range of projects that wouldn’t have required them previously.

“Have the HSE talked to domestic builders at all? Traditionally they’re not strong on paperwork,” he adds.

And Kier Group senior safety, health and environment manager David Lambert, who leads the ICE’s CDM panel, also expresses reservations about the consultation exercise.

temporary works

Temporary works: Overall responsibility appears to have shifted from contractor to client under the new regulations

“The short timescale allowed for the HSE to deliver the regulations means not enough attention has been given to different contractual arrangements and forms of procurement,” he says. “We are also concerned about the lack of an updated ACoP.

“Guidance documents are available, but they don’t have the same force as an ACoP, which has its own special legal status. I don’t think the HSE appreciates this.”
In response, the HSE states: “The consultation was held in line with government practice and the level of response was the highest of any HSE consultation. We have published comprehensive and authoritative guidance, and are currently considering whether a case can be made to produce an ACoP in the future.”
Lambert responds that “a slimmed-down ACoP that gives clarity without adding more regulations is what we want. What everyone in the construction industry needs to know is what they must do to ensure legal compliance.”

“The ACoP for CDM 2007 wasn’t perfect, but you could work with it,” adds Beal. “Most importantly, it made clear what you didn’t have to do.”

“A slimmed-down approved code of practice that gives clarity without adding more regulations is what we want”

David Lambert, Kier Group

Beal also believes that the extension of CDM requirements into new areas such as smaller scale domestic works, maintenance and events could lead to chaos in the short term. “There is a vast number of companies out there that have never heard of CDM before, and these new regulations are likely to come as a major shock,” he says. “Contractors on domestic projects face the biggest changes. To comply with the regulations, they will probably be faced with hiring CDM advisors and then trying to pass on the extra cost to the client.

“One of the unintended consequences of these new regulations could be that responsible contractors will risk being driven out of business by unscrupulous competitors who will ignore CDM and undercut them on price.”

“The existence of the principal designer doesn’t take away any of the designers’ responsibilities and liabilities”

David Lambert, Kier Group

Although Lambert agrees that there will be “additional bureaucracy” for the domestic contractor, he takes issue with Beale’s assertion that consultants working in the domestic field will also be badly affected.

“It’s difficult to see what extra duties will fall on designers, although there may be a different dynamic in the project team,” he says.

“We’re more concerned about the confusion about the requirements for maintenance and mechanical services.

“What is ‘construction work’ in this context? Is a facilities management contract lasting years notifiable if the only “projects” are the odd door or fluorescent tube replacement?”

The fear is that there will be a variety of interpretations by clients and others resulting in inconsistency across the industry and possible legal action.

No more CDM coordinators

One major change in the new Regulations is the disappearance of the CDM coordinator, to be replaced by the new role of “principal designer (PD). Appointed by the client at the inception of the project, the PD is responsible for overseeing the pre-construction phase, although, as Lambert points out, when this phase actually ends is a moot point.

“There needs to be a better understanding of what ‘pre-construction’ means”, he says. “It doesn’t necessarily end the moment work starts on site, as it also applies to the construction phases of everything from foundations to fit-out or signage.

“This means that ‘pre-construction’ can be going on in parallel with the overall construction period.”

Major break with accepted practice

Beal believes the PD role represents a major break with accepted construction industry practice. He says: “The problem is with temporary works design, traditionally the responsibility of the contractor. Now this must be overseen by the PD, who is responsible to the client, and may not have the specialist expertise needed.

“This is important, because temporary works design has a greater effect on construction safety than permanent works design does.

Lambert, however, disagrees. “The PD has to take an overview, and can’t be expected to deal with every specialism or detail. The existence of the PD doesn’t take away any of the designers’ responsibilities and liabilities. Temporary works designers are obliged to provide information to and co-operate with the other parties, in particular the PD.”

This view is supported by the HSE.

“The role of the PD is to plan, manage and monitor the pre-construction phase,” it states. “As necessary this will involve oversight of other designers. But this does not detract from the duties of those individual designers.

“There will still be a key role for temporary works designers.”

Lambert adds: “The fact that this is a controversial point is perhaps indicative that too many permanent works designers have always assumed that temporary works design is the contractor’s responsibility and not for them.

“Yet how can they be sure their designs will be safely constructed without considering what loads are likely to be imposed on the permanent works by the temporary works?”

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