New CDM Regulations

New CDM Regulations

Heather Hoey examines the impact of the new CDM Regulations on construction projects.

New CDM Regulations

The Construction (Design and Management) Regulations (Northern Ireland) 2007 came into force on 9 July, 2007 with the aim of improving health & safety performance in the construction industry. Many were concerned following the introduction of CDM 1995 that not enough was being done to promote effective Health & Safety Management, whilst also causing unnecessary bureaucracy and increasing burdens on business. In particular, many saw poor project management and fragmentation as major obstacles to progress in health and safety.

CDM 2007 seeks to address these failings and introduces critical changes. It revokes and replaces the 1995 CDM Regulations and the Construction (Health, Safety and Welfare) Regulations 1996, and a revised Approved Code of Practice (ACoP) accompanies CDM 2007 which provides practical guidance. As CDM 2007 affects all "duty holders", that is, client, designers, contractors (including principal contractors) and CDM Co-Ordinators, it is crucial to review the new arrangements and understand the new obligations imposed.

The key changes implemented in the new regulations are as follows:

• No contractor shall carry out construction work unless the client is aware of his duties under the Regulations.
• There are 2 types of construction projects under the Regulations, notifiable and non-notifiable. All of the Regulations apply to notifiable, whilst a limited amount apply to non-notifiable.
• The role of the planning supervisor has been replaced with that of a CDM Co-Ordinator who has more power under CDM 2007. The role is to ensure effective compliance with the duties in CDM 2007, and is in essence, the client's key adviser on health and safety issues. The client will instruct the co-ordinator and will be required to ensure they carry out their duties.
• There is an obligation on all duty holders to co-operate with others and co-ordinate activities (so far as is reasonably practicable) to ensure the health and safety of those engaged on construction projects. The client must take reasonable steps to ensure there are suitable management arrangements for health and safety on site. Crucially, clients do not have to manage the work themselves; rather they are required to make sure others have made appropriate arrangements to control risk. The client however remains liable for the adequacy of the management arrangements.
• For PPP schemes, project originators are legally the client at the start of the project and should appoint a CDM Co-Ordinator and notify HSE early in the design and specification phase - this cannot wait until the project company/SPV takes over the client role using the new "election" facility as the project proceeds.
• There are transitional arrangements in place under CDM 2007 where projects are commenced prior to 9 July.

The objective of the new CDM Regulations is to consolidate existing roles and simplify what can be often a bureaucratic process. For this purpose, the new regulations appear to have been successful and should improve the management of risk, ensuring responsibility is placed with those in the best position to influence or manage it. The new provisions clarify what duty holders need to do in order that they can easily understand their own role, and the roles of others on the project team. To that end, the regulations have been restructured to group their requirements by duty holder, thus making it more accessible and understandable. There is now an emphasis on 'competency' in order to address the concerns raised over the previous regulations.

Providing a set of regulations which enhances good health and safety can only bring commercial benefits to those relying upon them. Better quality, meeting deadlines and falling within budget are the clear goals and are foreseeable as health and safety within projects becomes better managed and executed.

Heather Hoey is a Solicitor in the firm's Litigation Department specialising in construction disputes and dispute resolution. She has advised both government bodies and private contractors in a broad range of disputes, including challenging tendering procedures and disputes over Final Accounts.

Heather can be contacted at: heather.hoey@lestrangeandbrett.com

Quote: PPP schemes ........ cannot wait until the SPV takes over the client role