CDM Regulations 2015: your questions answered

You’re probably now very aware that the CDM Regulations 2015 came into force as of 6 April 2015. My colleague, Luke Hurren, has written about the key changes and the transitional provisions that will apply between 6 April and 6 October 2015.

A number of frequently asked questions have arisen during recent discussions with clients, colleagues and others and you’ll find the answers below.

1. Will the new Regulations apply to my project?
From 6 April, the transitional provisions in the CDM 2015 will apply to all projects except where all of the following conditions are satisfied at that date: 

• A CDM co-ordinator has already been appointed. Due to the bank holidays over Easter the CDM Co-ordinator will effectively need to have been appointed by Thursday 2 April. 
• The project is on site by 6 April.
• The date for completion is before 6 October.

Provided all three conditions are met you should continue to comply with the CDM 2007.

2. What do I need to do on a project that is intended to and does end before 6 October 2015?
If the project is not on site by 6 April and/or a CDM Co-ordinator has not been appointed by 6 April, it will be necessary to appoint a Principal Designer. In accordance with Regulation 5(1) this will need to be a designer with control over the pre-construction phase. The appointment should be made as soon as possible and before the construction phase begins. If the appointment is not made the client will be responsible for fulfilling the obligations of a Principal Designer as set out in the Regulations.

If the three conditions set out in question 1 above are all met then it should not be necessary for you to do anything different to previous projects to which the CDM 2007 applied.

3. What if the project does not or will not end before 6 October 2015?
During the transitional phase the appointment of the CDM Co-ordinator continues to have effect for the purposes of the Regulations until either (a) a Principal Designer is appointed or (b) the project comes to an end. During the transitional phase the CDM Co-ordinator must comply with the duties set out in paragraph 5 of Schedule 4 to the Regulations. The client must appoint in writing a Principal Designer for the project before 6 October 2015.

There are several possible routes that may be followed, including:

• The CDM co-ordinator continues as the Principal Designer. Under the Regulations a party acting as a Principal Designer should be both a designer and have control of the pre-construction phase. As the Guidance on the Regulations notes, during the transitional phase CDM co-ordinators do not have to satisfy the criteria for a Principal Designer. It would appear therefore that if the party acting as CDM co-ordinator becomes the Principal Designer it should also be a designer for the purposes of the Regulations. The most straightforward option would be to vary the terms of the CDM co-ordinator’s appointment, following any formalities in respect of variations contained in that appointment. Our conversations to date have revealed that there are numerous CDM co-ordinators that intend to act as Principal Designers under the new regime and some are willing on existing projects to transfer over for no additional fee if this becomes necessary. Any party doing this should ensure that its insurers are aware and content with the new role and the obligations it will entail, and that cover will in principle be available in the event of a claim.
• Another party is appointed as the Principal Designer. On projects where the CDM co-ordinator is unwilling or unable to act as Principal Designer it will be necessary for the client to appoint a party acting as a designer as the Principal Designer. This will require either a variation to an existing appointment of a party fulfilling the role of a designer or a new appointment to be entered into. Again, the insurance position should be checked and careful consideration should be given to what happens to the CDM co-ordinator’s appointment.

If a client does not appoint a Principal Designer it is required, under Regulation 5(3), to fulfil the duties of a Principal Designer itself. Clients should therefore pay particular attention to any ongoing projects and ensure that a suitable route is followed.

4. Do I need to amend my contracts?
Probably! References to the CDM 2007 and CDM co-ordinator should be updated. Other changes may be necessary, such as to any detailed schedule of services in your suite of professional appointments. The Joint Contracts Tribunal has issued amendment sheets dealing with the CDM changes, see our blog article for further information.

5. I’m interested in learning more, where can I find additional guidance?
The HSE has published its Draft Guidance on the Construction (Design and Management) Regulations 2015. In addition, the Construction Industry Training Board have published a number of useful guides for the various duty holders under the Regulations.