Author: Gillian Birkby
This article was previously published in Building on 29 May 2015
The Construction (Design and Management) Regulations 2015 came into force last month, but misunderstandings remain over principal designers and CDM co-ordinators.
So, 6 April 2015 has come and gone, CDM 2015 is now in force and we must all work out exactly how to comply with it. There seem to be various misunderstandings around, particularly over principal designers and CDM co-ordinators. For instance:
Does the lead designer have to be the principal designer?
There is absolutely no requirement in the regulations that the lead designer has to take on the role of the principal designer. In many cases a lead designer may not have the necessary skills or knowledge to do so.
All the regulations require is that the principal designer must be a designer and that they must have control over the health and safety aspects of the pre-construction phase, which is the period when preparation and design work is being carried out.
Quite often this period lasts until nearly the end of the project, as design changes are frequently made at an advanced stage of construction.
The “control” which the regulations refer to relates entirely to health and safety issues. The CDM regulations are not the government’s attempt to tell us how to run projects or who should be in contract with each other: they are subsidiary legislation made under the Health and Safety at Work, etc Act 1974 which is concerned, obviously, with health and safety at work.
Any statement in any guidance or elsewhere to the contrary has no legal effect: the regulations are entirely clear that their focus is health and safety only.
Does the lead designer automatically become the principal designer?
On a commercial project a lead designer will not find that he has somehow become the principal designer without a conscious decision to take on the role. The regulations require that the appointment of a principal designer must be in writing. The usual rules apply: it is not sufficient for the client to write to the lead designer and say: “You will be the principal designer from date x.” The lead designer must also write back and accept that appointment.
In addition, there should be a reference to payment for these extra services. Unless the principal designer is paid, a client will not be able to satisfy its obligation to “make suitable arrangements for managing a project, including the allocation of sufficient time and other resources” (Regulation 4(1)). Equally, it would be impossible for a principal designer to carry out the obligations of that role properly without spending time and effort on them.
Can there still be a CDM co-ordinator on a project?
Where a CDM co-ordinator has been appointed before 6 April 2015 they can still continue in that role until at the latest 6 October 2015, or the date on which the project is completed if that is earlier. The duties of the CDM co-ordinator during that period are broadly similar to their previous duties under CDM 2007.
So we will still see CDM co-ordinators around for the next six months. The role will gradually be phased out because as soon as a client appoints a principal designer, the CDM co-ordinator’s role finishes and the principal designer will take up his/her duties.
Can CDM co-ordinators act as principal designers?
If someone who previously acted as a CDM co-ordinator is given control over the health and safety aspects of the pre-construction phase (which will usually be done as part of an appointment) and is also a designer, there is no reason why they cannot take on the role of principal designer.
“Principal designer” is simply a label for the role, and it is important to look at the actual functions of the principal designer, largely as set out in regulations 11 and 12. The label itself is to some extent irrelevant; it does not mean that the principal designer must be the main designer on the project. An individual or organisation may not do any design at all on a project, but could still be the principal designer for the project.
The principal designer must of course actually be a designer and this is widely defined in the regulations to include not only those we would think of as designers, but also anyone who “arranges for, or instructs, any person under their control” to prepare or modify a design.
The HSE guidance on CDM 2015, L153, although it does not have any statutory force, refers to a variety of roles which include design, such as temporary work engineers, chartered surveyors, technicians, specialist subcontractors and, of course, the client itself.
Gillian Birkby, Head of Construction, Fladgate LLP (email@example.com)