Building in Safety

The Construction (Design and Management) Regulations 2007

Chris Burford-Bradshaw

Access scaffold at the Grade I listed Old Court, Clare College, Cambridge. (Photo: Robin Deaney, Buildings Manager, Clare College)

On 6 April 2007 new regulations came into force which have far-reaching implications for the management of health and safety where construction work is being undertaken. The Construction (Design and Management) Regulations 2007, (CDM 2007) replace the original 1994 regulations. Additionally, The Construction (Health, Safety and Welfare) Regulations have been abolished and incorporated into CDM 2007, so rationalising the main construction health and safety legislation.

A first and important point is that, under the terms of the regulations, the definition of ‘construction work’ is wide, and includes:

• alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration, some types of cleaning, and demolition
• preparatory work, including site clearance, exploration and investigation (but excluding site survey work, although archaeological work may fall within the definition)
• the assembly on site of prefabricated elements to form a structure
• the installation, commissioning, maintenance, repair or removal of mechanical, electrical, gas or other installations, which are normally fixed within or to a structure.

One of the main aims of the new regulations is to reduce the level of bureaucracy, often experienced in the past, and to focus attention on the main health and safety issues. The regulations attempt to make health and safety considerations a central part of the development of a project, rather than an after-thought that is dealt with late in the project programme.

Some of the main changes to the previous regulations can be summarised as follows:

• The role of planning supervisor ceases to exists, and is replaced with a new CDM coordinator role, the CDMC.
• The preparation of a pre-construction phase health and safety plan by the planning supervisor (now the CDMC), is no longer a requirement. Instead, for the CDMC the emphasis is on obtaining comprehensive pre-construction phase information to pass to the principal contractor. It is then the responsibility of the principal contractor to prepare the ‘construction-phase plan’, (previously known as the construction phase health and safety plan), with guidance and input from the CDMC as appropriate.
• On notifiable projects, designers must not undertake anything more than preliminary design work before a CDMC is appointed. (Notifiable projects are those where work is expected to last more than 30 days, or where there will be more than 500 person days of work. In such cases, the Health and Safety Executive must be formally notified of the project.)
• Clients can no longer legally discharge their duties under the regulations by appointing an agent to act on their behalf. The responsibility for appointing competent consultants, and for ensuring that reasonable care is taken to provide information relevant to the planning for health and safety rests firmly with the client. Additionally (in the case of notifiable projects), if clients do not appoint a CDMC, they will be deemed to be such themselves by default, and will bear the responsibilities and liabilities of the role.
• All duty holders under CDM 2007 must consider and apply the general principles of prevention, to avoid and manage risks. The principles are set out in Appendix 7 of the new Approved Code of Practice (ACoP), published by the Health and Safety Commission. In short, at one extreme this approach requires risks to be avoided or ‘designed out’, while at the other extreme recognising that there will be residual risks, the management of which will need to be properly considered at the design stage.
• The definition of ‘designer’ has been widened. A designer is any person who prepares or modifies a design, in the course of the furtherance of their business. Thus planning and building control officers or consultants, conservation officers, English Heritage and Historic Scotland will be deemed to be designers for many of their decisions. Designers must now take account of the health and safety of any person who will use the completed structure as a place of work, as well as those building and maintaining it. Where a structure is to be used as a workplace, due regard must be taken of the Workplace (Health, Safety and Welfare) Regulations 1992, which relate to the design of a structure, or the materials used in it.
• All duty holders are to co-operate with any other person concerned with construction work at the site, or on any adjoining site, in order to enable them to perform their duties, and to efficiently manage the health and safety of all involved with or affected by the works.

TRANSITIONAL PROVISIONS FROM THE 1994 REGULATIONS

Part 5 of CDM 2007 deals with the transitional provisions of the regulations. Anyone appointed as a planning supervisor before the new regulations came into force will be deemed to be a CDMC in accordance with the new regulations. Similarly, principal contractors appointed under the old regulations will be required to comply with their new responsibilities under the new regulations. Importantly, clients will have 12 months from 6 April 2007 to verify that a planning supervisor or principal contractor appointed under the old regulations is sufficiently competent to act under the new regulations. However, there will clearly be some urgency in the responsibility to do this; for instance, where work is already progressing towards the construction phase. Similarly, both CDMCs and principal contractors will have until 6 April 2008 to ensure that they are competent under the terms of the new regulations. However, in the interim, all parties will be required to take reasonable steps to comply with the requirements of the new regulations.

IMPLICATIONS TO PROJECTS

The new regulations place much emphasis on the need for allowing adequate time for the proper planning of projects. This is considered fundamental and is why the regulations now require a CDMC to be appointed before significant detailed design work begins. The ACoP states that ‘significant detailed design work’ includes preparation of the initial concept design and implementation of any strategic brief.

In the past there has been a tendency for short lead-in periods between the appointment of a contractor and the commencement of work on site. This often leads to work commencing without full information being available, and with proper investigation works only being undertaken at this stage. The greater responsibility for the client to take reasonable steps to ensure that proper information is provided to the principal contractor, and the responsibility of the CDMC to advise on such, is likely to result in more detailed investigative works being undertaken at an early stage, but not necessarily prior to the appointment of a contractor. Although it is possible that such investigations could be undertaken after the appointment of a contractor, subject to the nature of the project, contractors should be provided with comprehensive information at the tender stage to allow them to properly assess the risks associated with the work, and therefore the planning and cost implications of such. At the same time, it is recommended that a principal contractor is appointed as soon as this is practical, to allow them to advise on buildability and maintainability. Additionally, the earlier the principal contractor is involved, the more time there will be for the joint planning of the project, and the development of a proper construction phase plan. Those managing projects would therefore be well advised to build in additional time in the programme for planning and investigative works. Further, it is recommended that consideration be given to appointing a contractor well in advance of the proposed start on site date.

On projects where design work continues into the construction phase of the project, adequate pre-construction information will need to be provided to designers before work starts on each new element of the design.

The new regulations also require CDMCs to be more involved throughout the course of projects, and to provide ongoing advice and direction regarding health and safety-related issues. This may include, for instance, recommending the use of anti-slip floor coverings in certain areas, and considering the maintenance implications of a particular building element. As a result of this wider remit for the CDMC, it is inevitable that the cost of engaging a CDMC will be higher than that previously applicable to the role of planning supervisor.

In considering forms of appointment and standard forms of contract, care should be taken to ensure that the new regulations and their requirements are referred to and taken into account. The Joint Contracts Tribunal has already published amendments to its contracts to reflect the changes. Standard forms of appointment for CDMCs are available from organisations such as the Association for Project Safety. Clients would also be well advised to check that their appointed consultants have professional indemnity insurance cover which specifically refers to CDM 2007.

THE PROVISION OF PRE-CONSTRUCTION INFORMATION

The compilation and provision of appropriate information is fundamental to the regulations. The pre-construction phase health and safety plan required under the old regulations is no longer needed and is replaced by the provision of pre-construction information. The ACoP summarises the requirement as ‘the right information for the right people at the right time’.

The sort of information that should be provided includes:

• any existing health and safety file
• an asbestos register
• a site investigation report
• information concerning mains services obtained from the appropriate utility companies.

However, in the provision of such information it will not be acceptable for clients to make generalised comments such as: ‘asbestos may be present in the building’. Instead there is a requirement for an appropriate survey to be undertaken to identify the risks.

THE WIDER PICTURE

Health and safety is still often not taken seriously, and it seems that there are many who still have the view that it is someone else’s concern, and not something that they need to get involved in. However, the construction industry still has the worst accident and death rates of any UK industry. The value of designing and managing construction work with health and safety firmly in mind is immeasurable. Additionally, the importance of site conditions should not be underestimated: a tidy and efficiently operating site is most likely to be a safe site (and vice versa).

As highlighted by the Health and Safety Executive, the poor management of health and safety is likely to result in unnecessary additional costs as a result of injuries, staff absences, programme delays, poor morale, and poor communications. If reducing the number of deaths and serious accidents in the industry is not reason enough to take an interest in health and safety, then hopefully reducing costs and increasing efficiencies is.

Everyone involved with a project has a responsibility for health and safety. This is the fundamental ethos of the new regulations. When this is combined with greater communication and co-operation between the parties involved in a project (together with reduced bureaucracy), wide ranging benefits must surely result.