The Health & Safety Commission has published a Consultative Document on proposed changes to the Construction (Design and Management) Regulations 1994.
The CDM Regulations
It is ten years since the Regulations, known as the CDM Regulations, came into force in March 1995. They were introduced to give effect to an EEC Council Directive on the implementation of minimum safety and health requirements at temporary or mobile construction sites, and supplement other Health & Safety regulations, specifically imposing requirements and prohibitions regarding the design and management aspects of "construction work". *
The Regulations require that the Client (i.e. any person for whom a construction project is carried out) must appoint a Planning Supervisor and a Principal Contractor (who may be the same person) for that project. Anyone appointing a Planning Supervisor or Contractors, or a Designer to prepare the designs for a structure, must be reasonably satisfied that they are competent to carry out the relevant functions, and that adequate resources are allocated for the performance of their respective functions. The Client must ensure that the Planning Supervisor has been provided with all relevant information about the site or premises and that information in a health and safety file is available for inspection.
The Planning Supervisor is responsible generally for ensuring that all aspects of the CDM Regulations and other Health and Safety regulations are adopted and applied on site, including ensuring that a Health and Safety Plan is prepared, and that details of a notifiable project are given to the Health & Safety Executive, in addition to giving advice to the Client and contractors, duties in respect of the health and safety aspects of the design of any structure in the project, and ensuring co-operation between designers. One of the principal duties of the planning supervisor is the preparation, review and, where necessary, amendment of a Health and Safety File for each structure in the project, and delivery of the Health and Safety File to the Client on completion of construction work on each structure.
The Regulations prohibit the commencement of the construction phase of a project unless a Health and Safety Plan has been prepared. The Health and Safety Plan should contain information that includes a general description of the construction work in the project and details of the length of time the project is intended to take, as well as details of any risks to the health or safety of any person carrying out the construction work so far as known or reasonably foreseeable and any other information which the Principal Contractor or any other contractor would need to comply with the regulations and health and welfare requirements generally.
The Principal Contractor has to take reasonable steps to ensure co-operation between all contractors on the project and that they comply with the health and safety plan. He should ensure only authorised persons are allowed on site and that any notices required are properly displayed. He is responsible for providing information to the Planning Supervisor, and may give directions to contractors for certain purposes and include rules for management of the construction work in the Health and Safety Plan. He must provide health and safety information to contractors, and is responsible for the provision of specified information and health and safety training to the employees of those contractors. He must also deal with the views and advice of persons at work on the project or their representatives regarding health and safety issues.
Designers have responsibility under the Regulations for ensuring that, so far as reasonably practicable, their designs avoid foreseeable risks to health and safety, that they combat health and safety risks at source, and that they give priority to measures to protect persons at work or those who may be affected by them. They must also ensure that their designs include adequate information about health and safety aspects of the project, structure or materials to be used, and must co-operate with the planning supervisor and other designers to allow them to comply with their statutory obligations. A Designer may not prepare a design unless he has taken reasonable steps to ensure that the Client for the project is aware of his duties under the Regulations and of the requirements of any practical guidance issued by the Health & Safety Commission.
* "construction work" means the carrying out of any building, civil engineering or engineering construction work and includes any of the following:
(a) the construction, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration or other maintenance (including cleaning which involves the use of water or an abrasive at high pressure or the use of substances classified as corrosive or toxic for the purposes of regulation 7 of the Chemicals (Hazard Information and Packaging) Regulations 1993), de-commissioning, demolition or dismantling of a structure;
(b) the preparation for an intended structure, including site clearance, exploration, investigation (but not site survey) and excavation, and laying or installing the foundations of the structure;
(c) the assembly of prefabricated elements to form a structure or the disassembly of prefabricated elements which, immediately before such disassembly, formed a structure;
(d) the removal of a structure or part of a structure or of any product or waste resulting from demolition or dismantling of a structure or from disassembly of prefabricated elements which, immediately before such disassembly, formed a structure; and
(e) the installation, commissioning, maintenance, repair or removal of mechanical, electrical, gas, compressed air, hydraulic, telecommunications, computer or similar services which are normally fixed within or to a structure;
but does not include the exploration for or extraction of mineral resources or activities preparatory thereto carried out at a place where such exploration or extraction is carried out. (Regulation 2(1))
The Revision Proposals
The proposals would produce revised and consolidated provisions of both the CDM Regulations and the Construction (Health, Safety and Welfare) Regulations 1996. The consultative document provides background and details of the proposed changes to the Regulations and includes draft Regulations and draft Guidance which would accompany them.
Central to the proposals is the intention to improve the management of risk, building on the existing general principles, and drawing from industry feedback on the operation of the CDM Regulations in practice, and therefore the objectives of the revision of the Regulations are:
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simplification of the Regulations to make it easier for duty holders to know what is required of them;
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making the Regulations more flexible to suit all circumstances;
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by accentuating actual planning and management, rather than the paperwork, to cut down on bureaucracy;
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the encouragement of more integration, particularly between designers and contractors through co-ordination and co-operation; and
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the raising of standards and reduction of bureaucracy through simplification of the assessment of competence for organisations and individuals.
The structure of the proposed Regulations has been reorganised to provide for the various responsibilities of each relevant duty holder to be grouped together, and set out in schedules to the Regulations details of the particulars that need to be notified to the Health & Safety Executive, the requirements for "welfare facilities" – cleaning, washing, changing etc – and detailed requirements for achieving adequate health and safety standards on the site, as well as particulars of the information that should be included in a report of inspection.
The principal changes that are proposed include:
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The application and notification requirements have been simplified so that there will be only two types of project – notifiable** and non-notifiable, and it will be clear which requirements will apply to all projects, and which requirements such as those relating to appointments, plans and other paperwork would apply to notifiable projects only.
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It is intended to replace the Planning Supervisor with a new Co-ordinator who will provide advice and support in a role, similar to, but wider than the role of the Planning Supervisor, and to put the onus on the Client to ensure that the Co-ordinator's duties are carried out. The Co-ordinator should be appointed before any design work begins, and designers and contractors should not do any work unless a Co-ordinator has been appointed.
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The requirement for competence is restated in the proposed Regulations. However, the Consultative Document seeks views on how standards of competence can be evaluated without descending into a bureaucratic paper chase.
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The various duties to co-operate in the current Regulations have been pulled together as a single requirement for everyone in the project to co-operate with the others to allow their duties to be carried out, and extended to apply across different projects.
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The proposed regulations will place a duty on Principal Contractors to consult with workers on the site, encourage dialogue and participation and ensure that workers' views are taken into account.
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A new duty on the Client is proposed, which would require it to ensure that suitable project management arrangements for health and safety are in place. It is expected that the Client should be able to rely on the Co-ordinator and the construction team generally for advice and support in complying with this duty. The Consultative Document asks that respondents advise whether this proposed new duty is reasonable and appropriate.
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The current provisions in the Regulations regarding agents are to be scrapped. They are seen as providing the Client with the opportunity to abdicate responsibility for its duties under the Regulations.
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The specific requirements on the Developer contained in the current Regulations are also to be abolished, on the view that the general provisions that will apply are adequate.
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Designers are seen as having great potential to reduce or eliminate the risks associated with construction work, and therefore while the principles applying to them are, for the most part, unchanged, the factors they need to allow for when exercising their judgement are revised and clarified. Their duties will be extended to ensure that their designs for workplaces such as offices, shops, hospitals, factories and schools are safe to use.
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The role of Principal Contractor remains largely unaltered other than to make clear the importance of the Principal Contractor's role in managing the construction phase. It will also be clearly stated that there can be only one Principal Contractor on a project.
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The duty on contractors to plan, manage and monitor their own work is emphasised.
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A sufficient period of notice should be given from the time of appointment to a start on site, to allow adequate opportunity for planning and preparation, both for the work itself and for welfare facilities on site.
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The current arrangements for provision of pre-construction documentation are to be replaced with a general obligation regarding communication of information needed, focusing on providing the right information to the right people at the right time, rather than following a prescriptive procedure.
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The Consultative Document proposes that it would be more useful for a Health and Safety File to relate to a single site or structure or series of structures, rather than necessarily an entire project, and for it to include information about the condition and location of asbestos or asbestos containing substances, required under the Control of Asbestos at Work Regulations 2002.
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The provisions of the Construction (Health, Safety and Welfare) Regulations 1996 are restated, for the most part, with amendments intended largely for clarification. The work at height provisions in those regulations are to be covered in separate Work at Height Regulations and the other main change is for a wider duty regarding security and safe use, storage and transportation of explosives.
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There will be a new duty to have a written record for demolition and dismantling arrangements. Demolition or dismantling of a structure should be planned and carried out in an appropriately managed way.
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Current rights of civil action in the CDM Regulations are limited to a breach of the Client's duty to ensure that there is a Health and Safety Plan in place before construction commences. It is proposed that this be continued but that employees (but not self employed workers) will also have a right of action in respect of a breach of the Regulations.
Views are sought on the proposals contained in the Consultative document by 29 July 2005 and if there is general support for the proposals, the intention would be to have the new Regulations and guidance in place by October 2006.
** a project is notifiable if the construction phase is likely to involve more than 30 days or 500 person days of construction work
The current CDM Regulations can be accessed through the HMSO website at:
http://www.legislation.hmso.gov.uk/si/si1994/Uksi_19943140_en_1.htm
The Consultative Document on the proposed new Regulations and Guidance is available from the website of the Health and Safety Executive at: http://www.hse.gov.uk/consult/condocs/cd200.pdf