Construction (Design and Management) Regulations 2007 – Proposed changes

On 31 March 2014 the Health and Safety Executive (HSE) launched a consultation document on proposed changes to the Construction (Design and Management) Regulations 2007 (CDM Regulations), which included a copy of the draft Construction (Design and Management) Regulations 2014.

Under the current proposals, the existing CDM Regulations would be scrapped and replaced with a different set of regulations. The aim is to simplify the CDM Regulations and include introduction of practical guidance to replace the Approved Code of Practice and replacement of the CDM Co-ordinator with a “Principal Designer”. The proposal also includes extending aspects of the CDM Regulations to apply to domestic clients.

The consultation will run until 6 June 2014 and the new regulations are proposed to come into force in April 2015.

The CDM Regulations are a key piece of health and safety legislation affecting construction and engineering projects and property development. They were first introduced in 1994, primarily to implement part of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites.

They have a wide application and criminal sanctions apply to a breach through the Health and Safety at Work Act 1974. There may also be liability under the civil law. However, the CDM Regulations have been subject to widespread criticism since their inception and there has been a push by the Government in recent times to reduce the amount of red tape and needless bureaucracy on construction sites.

In 2011, an independent review of health and safety legislation was carried out, which recommended reviewing the CDM Regulations and its accompanying Approved Code of Practice. As part of this review, Professor Ragnar Lofstedt, Director of the King’s Centre for Risk Management at King’s College, London, was asked by the Government to: “…consider the opportunities for reducing the burden of health and safety legislation on UK businesses whilst maintaining the progress made in improving health and safety outcomes…”

Professor Lofstedt published his report titled “Reclaiming health and safety for all: An independent review of health and safety legislation” on 28 November 2011 and identified a number of key recommendations for the government including a review of all of its Approved Codes of Practice and a general overhaul of the CDM Regulations 2007. In short, his report recommended getting rid of 50 per cent of health and safety laws within three years. The Government responded positively to this review and decided to overhaul the CDM Regulations.

What is being proposed?

The key proposals in the consultation document are:

  • simplified structure (only 38 Regulations and three Schedules) in order to make the CDM Regulations easier to understand;
  • replacement of the Approved Code of Practice in favour of practical guidance on compliance;
  • replacement of the CDM Co-ordinator with a “Principal Designer”;
  • removal of explicit competence requirements and replacing with a specific requirement for appropriate skills;
  • addressing areas of the Temporary or Mobile Construction Sites Directive relating to domestic clients; and
  • the threshold for appointment of CDM Co-ordinators.
There has been a serious delay in the HSE issuing the consultation document and some query as to whether the Government has the appetite for bringing about such far-reaching changes as those recommended almost three years ago – especially with a General Election in 2015.

Whilst most will welcome the simplified structure, some may question whether this goes far enough. For example, under the current proposals, there are no significant changes to the current technical standards contained in Part 4 and Schedule 2 because “these have not proved controversial, have stood the test of time and are not covered by other legislation”.

The replacement of the Approved Code of Practice with targeted guidance is a welcome proposal as is the removal of Regulation 4 of the CDM Regulations in favour of a specific requirement for appropriate skills.

It is widely accepted that the Approved Code of Practice is impenetrable to most and the proposal seeks to replace it with a suite of tailored guidance in “plain English, explaining what is required to be done in order to comply with the law”. Likewise, the removal of Regulation 4 is for the simple reason that it has become far too costly and bureaucratic.

Arguably, the most talked about proposal is the replacement of the CDM Co-ordinator with a Principal Designer. The reasons behind this change include the following:

  • The current approach is ineffective: it is bureaucratic and adds costs with little added value.
  • Appointments are made too late.
  • Too little funding is made available.
  • Those involved in fulfilling the CDM Co-ordinator role are often not well embedded into the pre-construction team.
The main difference between the CDM Co-ordinator role and the Principal Designer role is that the Principal Designer will be responsible for pre-construction co-ordination and therefore have a greater influence over the design.

Regulation 9 states: “A principal designer must plan, manage, monitor and coordinate the pre-construction phase of a project, taking into account the general principles of prevention…”. It then identifies eight principles of prevention.

The introduction of the Principal Designer role in place of the CDM Co-ordinator highlights the importance which the HSE places on health and safety at the pre-construction stage.

This change is expected to “deliver economies of scale” because the default position for discharging this function is within the existing project team. The aim of this new role is to facilitate an integrated approach to risk management. This role, of course, was always intended to be undertaken by one of the traditional designers or contractors so this is seen by many as a positive step.

The remaining proposal includes the removal of the domestic client exemption to ensure that effective co-ordination of health and safety is carried out on all projects regardless of whether they are carried out for domestic clients. Again, this is something which has been avoided to date and should bring the UK in line with the rest of the EU in that the Temporary Mobile Construction Sites Directive requires that all construction projects on which more than one contractor is working must have someone to co-ordinate the health and safety aspects of the project, irrespective of whether they are commercial or domestic.

The new CDM proposals are currently out for consultation on the HSE website, http://www.hse.gov.uk/consult/condocs/cd261.htm and views are being sought on them. The consultation closes on 6 June 2014.

Other Comments noted on websites:

“In the industry, speculation has been mounting that the update now known as “CDM 201X” might be pushed beyond the General Election due to lack of parliamentary time – or even by political lack of enthusiasm for additional EU-driven regulation”.

Vaughan Burnand, chair of the CIOB’s Health and Safety group, said that the HSE did not seem to be prioritising the update, although it was unclear why. “We were told [by the HSE], ‘we’re all carrying on, but take the ‘four’ away from 2014 and we’ll let you know’.”

“This is the last year of the government, and there is this idea that it mightn’t be until after the General Election, which is fairly shocking in my view.”

An H&S insider said: “My perception is that the HSE have all their ducks in a row, but it’s being held back by the minister rather than the HSE. The introduction of CDM Regulations to domestic projects wouldn’t be an easy pill for Middle England to swallow.”

“The introduction of CDM Regulations to domestic projects wouldn’t be an easy pill for Middle England to swallow.”

An HSE spokeswoman insisted “that the HSE is making progress behind the scenes, although she did leave open the possibility that ministerial or political delay could still scupper the timetable”.

“We don’t yet have a date [for publication of the consultation draft] but we’re moving forward with the various processes that need to happen at government level, for instance we have clearance from the Regulatory Policy Committee [a non-departmental public body that scrutinises plans to introduce or repeal regulation]”.

“Then we will need to have it cleared by the minister [Mike Penning at the Department for Work and Pensions] and other parts of government. We’re not going to speculate on a date, but we’re still on track for it to be passed into law by April 2015.”

An HSE statement added: “We would like to thank the industry for its support during the development of the proposals and its continuing patience while we prepare for the consultation.”