LAWBUILD Letter No. 17

Thursday, 24 January 2008

Lawbuild provides construction law expertise to save clients time and money. A personal message from Lawbuild's Principal David Lewis

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CDM

For those happy folk to whom the abbreviation “CDM” means little or nothing, I should explain that they stand for “Construction (Design and Management)”. Those words form the title of new regulations which came into force on 6th April 2007.

CDM is about construction design and management, but its purpose is to promote health and safety on and around building sites and to ensure that completed structures are healthy and safe for the people who will work in them.

The 2007 regulations replaced the original CDM régime which came out in 1994. Many construction professionals think the new regulations simply change some of the terminology. They do, but that is not all they do. In fact the changes are so many that a comparison is a bit of a waste of time; it’s easier to start from scratch with the new rules.

Our main article below does that, but in a very limited and focused way. Most of our clients are developers of one kind or another, or professional firms who represent developers. The CDM regulations call developers “clients”; our article simply lists all the duties of a “client”, and there are quite a lot of them.

If you are a designer, a main contractor, or a subcontractor, you won’t find much help in the article. But I’ve prepared a one-page table which lists all the regulations affecting each participant in the building process, which I am happy to email to anyone on request; you can use this link.

Enjoy The Lawbuild Letter No. 17.

With kind regards.

Principal of Lawbuild, solicitors
Editor of the Lawbuild Letter

How the CDM Regulations affect “clients”

If as part of a business you are commissioning any construction design or works, then you are a “client” within the meaning of the Construction (Design and Management) Regulations 2007 or “CDM Regulations”.

The sole aim of this paper is to outline your duties as a “client” under the CDM Regulations. You may be prosecuted for any failure to comply.

This article is a summary, and I have ruthlessly cut down the enormous amount of (mostly unnecessary) verbiage in the Regulations. Consequently it is not – and cannot by its nature be - completely accurate, and for full information you should refer to the Regulations and any official guidance by the Health and Safety Executive.

If you have no idea how to go about complying with these duties, then you will need to find and appoint a construction professional who can advise you and (preferably) act as CDM Co-ordinator.

1.APPLICATION

1.1.The Regulations apply in England, Scotland and Wales.

1.2.They also apply to certain premises and activities in the territorial sea and continental shelf adjacent to Great Britain.

1.3.For fuller information see regulation 3.

2.CDM CO-ORDINATOR (FORMERLY PLANNING SUPERVISOR)

2.1.You must appoint a CDM co-ordinator promptly after initial design or preparation for construction work has begun.

2.2.You must ensure there is always a CDM co-ordinator until the project is complete.

2.3.If there is no CDM co-ordinator, you must carry out his duties (which this paper doesn’t cover).

2.4.You must ensure the CDM co-ordinator has all the health and safety information you have or can obtain which is needed for the health and safety file.

2.5.For fuller information see regulations 14(1), (3) and (4) and 17.

3.PRE-CONSTRUCTION INFORMATION (FORMERLY PART OF HEALTH AND SAFETY PLAN)

3.1.You must ensure that every designer, contractor and subcontractor has pre-construction information.

3.2.This means all information you have or can get of the kind set out in below and which the recipient needs for –

3.2.1.ensuring the health and safety of –

3.2.1.1.site workers,

3.2.1.2.others affected by the way the work is carried out, and

3.2.1.3.the people who will eventually use the completed structure as a workplace;

3.2.2.helping the recipient to perform his duties under the Regulations and to decide what resources he should allocate for managing the project.

3.3.The pre-construction information itself will relate to –

3.3.1.the site and/or the construction work;

3.3.2.the eventual use of the completed structure as a workplace;

3.3.3.the mobilisation period (i.e. the minimum time before construction begins which the contractor and subcontractors will be allowed for planning and preparing the work);

3.3.4.any information in any existing health and safety file (see below); and

3.3.5.anything else relevant to above.

3.4.You must provide the CDM Co-ordinator with all pre-construction information provided to others, and any further information of the same kind (including anything about the mobilisation period).

3.5.For fuller information see regulations 10 and 15.

4.DESIGN

4.1.Where a design is prepared or modified outside England, Scotland or Wales, you must ensure that designers comply with their duties under regulation 11 (not set out in this paper).

4.2.For more information see regulation 12.

5.PRINCIPAL CONTRACTOR

5.1.After you have appointed the CDM Co-ordinator you must appoint a “principal contractor” (whose duties are set out in the Regulations) as soon as you know enough about the project to do so.

5.2.You must ensure there is always a principal contractor until works are complete.

5.3.If there is no principal contractor, you must carry out his duties (not covered in this paper).

5.4.For fuller information see regulations 14(2), (3) and (4) and 16.

6.MANAGING PROJECT

6.1.You must ensure that –

6.1.1.the project is managed without risk to anyone’s health and safety.

6.1.2.welfare facilities are provided as set out in the Regulations.

6.1.3.the eventual workplace has been designed taking account of the Workplace (Health, Safety and Welfare) Regulations 1992 relating to design and materials.

6.2.For fuller information see regulation 9.

7.CONSTRUCTION PHASE PLAN (FORMERLY PART OF HEALTH AND SAFETY PLAN)

7.1.If the construction period will be more than 30 days, or will involve more than 500 man days, you must ensure that works do not start unless –

7.1.1.the principal contractor (see above) has prepared a construction phase plan complying with the Regulations, and

7.1.2.you are satisfied that welfare facilities complying with the Regulations will be provided throughout the construction period.

7.2.For fuller information see regulation 16.

8.HEALTH AND SAFETY FILE

8.1.You must ensure the CDM Co-ordinator has all the health and safety information you have or can get which is needed for the health and safety file.

8.2.You must ensure that a health and safety file relating to more than one project clearly identifies the information about each site or structure.

8.3.You must ensure the health and safety file is kept available for inspection by anyone needing to comply with the law, and that it is revised to incorporate any new information.

8.4.When selling the structure you can deliver the health and safety file to your buyer, ensuring he is aware of its nature and purpose. (It is thus a good idea to actually label it “Health and Safety File”, which - believe it or not – does not always happen.)

8.5.For fuller information see regulation 17.

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About Lawbuild

Lawbuild is a specialist construction law practice offering expert advice and services to anyone carrying out or lending money for construction, and to any buyer, seller, landlord or tenant of recently built or refurbished property.

We also enable commercial property solicitors to provide a construction service to their clients, and quantity surveyors to provide a legal service to theirs.

We do development work.  Despite writing occasional articles on litigation, arbitration and adjudication, we do not undertake dispute resolution but will offer to refer callers to various associates who do this work.

Lawbuild’s principal, David Lewis, has been a solicitor since 1969 and has more than 30 years’ experience in contracts and construction law.

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