New Regulations

Proposed replacement of the Construction (Design and Management) Regulations 1994

By Phil Elsdon

The Construction (Design and Management) Regulations (CDM) apply to any construction works being undertaken in a quarry (see Quarry Management, vol. 29, no. 11 p.15), but do not apply to ‘the exploration for or extraction of mineral resources or activities preparatory thereto’; in other words standard quarrying activities. This article investigates the potential impact of proposed changes to CDM Regulations on construction projects, based on draft versions of the new regulations and Approved Code of Practice that are currently under review.

There has been discussion over the years questioning the benefits of the CDM Regulations and whether they improve safety on construction sites. There is now general agreement that the principles of CDM are correct, but in order to deliver the benefits originally expected from CDM, a number of issues need to be addressed. The Health and Safety Commission, with the assistance of the Construction Industry Advisory Committee (CONIAC), has therefore been considering changes to the CDM Regulations, with a new document being proposed — The Construction (Design and Management) Regulations 2005. The timetable for the introduction of these new regulations has been delayed on a number of occasions, highlighting the care being taken to ensure a workable revision. The expected timetable for their introduction is for a four-month consultation exercise to be undertaken in June 2005, with the new regulations published in the autumn. The consultation will be posted on the Health and Safety Executive’s (HSE) web site (www.hse.gov.uk/consult/live.htm) when they are ready.

There has been considerable speculation over what form the new regulations are likely to take along with concerns about their impact on the existing duty holders, ie client, designer, planning supervisor and principal contractor. It is perceived that some do not always suitably fulfil their roles and responsibilities, made worse by a cavalier attitude by some in the construction industry, where health and safety is seen to be a costly ‘bolt-on extra’ rather than a management tool to ensure the safety of all involved in construction and long-term maintenance.

It is understood that the new regulations will consolidate and revise the provisions in both Construction (Health Safety and Welfare) Regulations 1996 and the CDM Regulations 1994, including several major changes to the regulations. The key aim of the revisions is to promote changes in behaviour and attitudes towards safety and health issues within the construction industry, while improving clarity of what is required of the duty holders. The changes will also strive to reduce the level of bureaucracy that the current regulations seem to create, with a new focus on planning and management of safety and health, rather than on paperwork.

The name ‘planning supervisor’ will no longer exist, as they neither plan nor supervise, but will be replaced by the term ‘co-ordinator’, with a role developed from the existing planning supervisor role. This originates from the Temporary or Mobile Construction Sites Directive (92/57/EEC) where the name ‘pre-construction health and safety co-ordinator’ is used. The co-ordinator will be expected to assist the client, designer and contractor in achieving better health and safety on site. The co-ordinator will often be independent of other roles and could be seen as the ‘client’s friend’, advising and assisting the client to fulfil their duties. Co-ordinators will be expected to have a sound working knowledge of health and safety in construction work, the design process, construction work in general, as well as in future maintenance, refurbishment and demolition and any health and safety issues that could arise.

The new regulations are set to discourage clients from procuring construction projects solely based on cost and speed as they will have a duty to ensure that suitable project-management arrangements are in place for health and safety. They will no longer be able to absolve themselves of their responsibilities through an agent and will have greater responsibilities as they will now have to ensure that the
co-ordinator’s duties are carried out. It is seen that clients are key in this as they have the authority to empower the co-ordinators to undertake their duties. If, however, a client fails to appoint a co-ordinator or principal contractor for a notifiable project, the clients themselves will be deemed to take on the legal liability of co-ordinator or principal contractor.

There are proposed changes to small projects involving five or more people on site, where clients will no longer be required to appoint a co-ordinator or a principal contractor. However, where a small project includes demolition work, then the regulations will apply. The appointment of a co-ordinator or a principal contractor will only be required on notifiable projects which involve 30 or more days of construction work or 500 or more person days of construction work, which will be notifiable to the HSE. As with the existing regulations, most key duties of the designer will still apply even where a co-ordinator or a principal contractor is not appointed.

An area that caused confusion in the past was the timing of appointments. This has now been clarified. The co-ordinator will need to be appointed before the design work starts. This is reflected in designer and contractor duties, where they are not to start their work unless a co-ordinator has been appointed. This requirement is so that the co-ordinator can influence the design before any early decisions become fixed.

There are minimal proposed changes for designers and contractors. The affects on people constructing, maintaining or demolishing the structures are to be a key focus of designers. The new regulations will encourage designers to consider the removal of hazards as their prime aim. The regulations explicitly state that there can only be one principal contractor on a project and that they will need to manage the construction phase of the project. Contractors will be required to monitor their own work to ensure that it complies with the requirements of the plan. The existing requirements for co-operation will be extended, requiring all parties to co-operate with all other parties. This will also include a duty to co-operate with neighbouring projects on the same or adjoining sites.

It is proposed that the formal Pre-Tender Health and Safety Plan will be abandoned, replaced by the communication of the information to designers and contractors in an ‘information pack’. This will not be a specific document but rather a flow of information to the ‘right people at the right time’ throughout the project and it will be the responsibility of the co-ordinator to ‘prepare and share’ this information. The sharing of this information will probably involve calling meetings of the design team to ensure that all parties receive relevant information. This will include the provision of information to the designers prior to their commencing the design.

It is proposed that there will only be one health and safety file for each site rather than, as is often currently the case, a separate file for each project. This document is to be added to when subsequent projects are undertaken. It is expected that the file will be linked to other documents, such as a building manual, to make the document as useful and easy to maintain as possible. It is intended that the file will be a practical, user-friendly document that clients will want to use. The health and safety file is to be prepared and updated as necessary by the co-ordinator.

The final details of these proposed regulations will not be known until late 2005. However, it is hoped that this brief summary of current considerations will help all parties to start to prepare for the changes and to consider how their existing procedures may need to be changed. It can be seen that, while there are a number of detail changes being proposed, the essence of the regulations will remain the same. The application of the CDM Regulations will hopefully be streamlined, with each party having a clearer understanding of what is required of them. The ultimate aim of the regulations is not, however, to provide an auditable trail, nor to protect the companies involved from litigation; it is to protect people who will work on the construction, use, maintenance, alteration and eventual demolition phases of the project. The true aim is to allow individuals to be able to go home in the evening after a day at work in the same healthy physical condition that they went to work in, without injury of any form. If this is kept as the focus of all parties, then the regulations will achieve their aim.

Peter Brett Associates, Caversham Bridge House, Waterman Place, Reading, Berks RG1 8DN; tel: (0118) 950 0761; fax: (0118) 959 7498; email: cdm@pba.co.uk; website: www.pba.co.uk