New CDM regulations need “mind shift” by designers to embrace new responsibilities

Sheena Sood, Beale and Company

Overhaul of health and safety responsibilities means designers must place safety at the heart of design, says Beale and Complany partner Sheena Sood.

A critical shift in thinking is vital across the construction design community to embrace new responsibilities outlined in the new health and safety legislation according to legal experts.

Speaking in a recent webinar on the new Construction, Design and Management (CDM) regulations, specialist construction lawyers Beale & Company Partner Sheena Sood highlights the widening scope and application of the regulations and the need for designers to prepare.  

“The Regulations requires a mind shift for designers from health and safety being an ancillary design consideration to being integral to their design thinking,” Sood explains. 

The CDM Regulations 2015 will come into force on 6th April.

Sheena Sood and Andrew Croft of Beale & Company discuss the key changes and the impact on appointments, insurance arrangements and the procurement process in a new webinar – to acces the webinar click here

“That means from the outset considering safety issues with the design rather than an afterthought” she adds. “Or starting off thinking is there  a different way of designing an element which will make it safer to construct or safer to maintain?”

The draft revised CDM regulations were published in January and are due to come into force on 6 April this year. 

The new regulations contain some significant changes to the current CDM Regulations 2007 and take on board feedback from the recent public consultation (details here). The early publication of these draft Regulations and accompanying guidance aims to allow project participants to familiarise themselves with their changing obligations before the new Regulations come into force.  

The implications were discussed in a webinar with Sood and Andrew Croft of Beale & to give an overview of the key changes and the impact on appointments, insurance arrangements and the procurement process.

The Regulations increase the duties on duty holders. For the first time domestic clients are brought within the remit of the Regulations and the CDM Coordinator role has been abolished. 

The new role of a Principal Designer is introduced with a shift in emphasis on the importance of the designer's role as integral to health and safety in construction from concept through to construction through to use of the structure. 

Sood highlights the increasing focus of the HSE on the role of the designer and how, with the key role for safety placed firmly on designers, the HSE see as design as integral to health and safety in construction from concept through to construction through to use of the structure. 

Whether this shift can also happen for architects who can tend prioritise aesthetics above engineering and construction considerations, she adds, remains to be seen. 

Also highlighted in the webinar is the substantial challenge for the future with those who educate and train would-be designers to treat safety as fundamental to the design process.

Ensuring that new entrants to the design profession are armed them with sufficient knowledge about how things are built to give them the necessary skills to deliver is cruticak, she says. 

“BIM will help with coordination and collaboration but until there is acceptance of the importance of safety in design,” says Sood highlighting that the new Regulations will continue to involve those within a project team shifting health and safety responsibly to others. 

“Whether the HSE have finally got it right remains to be seen but new drafting and guidance alone won’t help without the aims being embraced by the industry as a whole and all those in the supply chain,” she adds.


Sheena Sood's comments that designers deal with safety as an 'afterthought' and that 'The Regulations requires a mind shift for designers from health and safety being an ancillary design consideration to being integral to their design thinking' are completely unjustified and suggests that she is out of touch with what designers do. Safety has always been an important part of design and the CDM Regulations have required designers to think about it that way since 1995 - it is not a new requirement. The draft new Regulations do not change the duties of designers significantly - what they do is transfer the duties of the CDM Coordinator to the Principal Designer. The points where legal advice about the new Regulations would be useful are: 1. The Regulations appear to say that if the Client gives the contract for a project to a single Main Contractor, a Principal Designer is not necessary. Is this correct? 2. The Regulations state that the Principal Designer must be the designer who leads the design team and he/she must be appointed in writing by the Client. However on a Design and Build Project, the design team and its leader are employed by the Contractor. Is a Principal Designer required and, if so, who can the Client appoint to carry out the job? 3. Under the 1995 Regulations many Planning Supervisors asked designers for Designers' Risk Assessments, filling many lever arch files with useless paperwork, despite the fact that these illogical (risks depend on the contractor's competence and method of working, which the designer has no control over) and were not required by the Regulations. DRAs are not required under the 2007 Regulations and this is confirmed by an FAQ on the HSE website. However the draft 2015 Regulations contain passages which could be interpreted as bringing back DRAs. Is this the intention? 4. A key proposal of the 2015 Regulations is that for domestic projects, all CDM duties and responsibilities, including the Client's duties, are transferred to the builder. How can this be reasonable when design decisions are taken by the Client? Also what has been done to draw this to the attention of ordinary builders and train them to carry out these new duties? There are many other questions which could be asked. The impression is that these revised Regulations are being rushed into law with inadequate thought, preparation and consultation. Reorganising the whole construction industry will take more than just passing a law one day and expecting everyone to comply with it the next and I fear that if they are passed unamended the new CDM Regulations are likely to be more effective at generating confusion than improving safety.
I think CDM is a good thing. Designers should consider the safety implications of their output. However, I think there are some tricky devils in the detail of CDM2015. I agree with the observation that these look like rushed regulations with inadequate thought behind them, but I think some of the questions asked by anonymous have obvious answers: 1: If you can find a main contractor who will do absolutely everything with not a single subbie employed, then a PD is not necessary. Good luck with that quest. 2: The client could employ the contractor as PD. That's the party in control of the design, the party at the head of the chain that appoints all the other designers. No reason I can see for not having PC and PD be the same organisation. Regarding paperwork at question 3, it's obviously not the intention. It may well be the consequence, I agree. I see regulation 11(3), which makes the PD jointly liable for all the foreseeable risks in the output of every designer on the project, as generating a positive blizzard of paperwork and never-ending cycle of meetings where the PD tries to review every detail of everyone else's output (SFARP, admittedly, but that's still a fairly high hurdle to clear). The real questions, I think, are all about 'what does good enough' look like? We never really got that answered for CDM 2007, and the question is even more difficult for CDM 2015 - How does the PD manage and monitor designers it has no contractual control over? What do the regs mean when they say the PD must control risks (surely not a management function on site)? How does a PD identify risks in the output of a designer it does not know about (say, a bit of temporary works inadequately lashed together by a subbie to a subbie to a contractor the PD does not control?) CDM is good. The intention of CDM2015 is good. I worry that the details will scupper and drown out all that is good about it.
Never mind the paperwork! KISS . Health and Safety is about enhancing and reminding people of their "natural" human survival skills . All of this needs to happen on the ground in real time . Here's what to do :- 1) STOP wasting time and resources on thinking up generalised ineffective paperwork schemes for managing Construction H&S 2) STOP making laws that just increase "legal greyness" and large pay days for our bloated legal system 3) Take the financial savings from 1&2 above + savings in industry insurance premiums and put the money in a BIG POT . 4) Use the money to pay for practical enhancement of Health and Safety as follows:- a)train more and get HSE inspectors more realistic and approachable (they should all be "time served experienced and practical" ex industry operatives) b)the above to carry out regular "site TRAINING and inspection " visits rather than just inspection ! c)promote the use of mobile workshops for H&S refresher training for all d)promote H&S combining "safety" with innovation and "efficiency" In short take it OFF THE DESK - OUT OF THE COURTROOM - AND BACK INTO THE WORKPLACE where it belongs!
“That means from the outset considering safety issues with the design rather than an afterthought” she adds. - Outrageous!! I've never met a designer who considers safety as an afterthought! It was in the previous regulations and having a new PD does not change this.