CDM Designer dilemmas answered

Beale &Co
29 March 2016

Twitter FacebookLinkedIn

Print

Topics 

Legal

Uncertainty abounds since the new CDM regulations were introduced in October. Beale & Company associates James Vernon and Andrew Croft cover some FAQs

The Construction (Design & Management) Regulations 2015 affect almost all construction projects in Great Britain and so all consultants need to ensure they are familiar with them. The main changes they have brought about are: 

•the introduction of the new principal designer role for projects with more than one contractor (including the competency requirements for that role), replacing the CDM co-ordinator;

•the extension of the regulations to cover domestic clients; and 

•a change in the basis for determining whether projects require notification to the Health & Safety Executive.

Common queries and our response: Do the Construction (Design and Management) Regulations 2015 apply to services carried out in Great Britain for a project overseas? CDM 2015 applies to all construction projects in Great Britain. 

Accordingly, if the project is not in Great Britain, CDM 2015 will not apply, even if services in relation to the project are carried out in Great Britain. 

Appointments on projects overseas may, however, include obligations to comply with CDM 2015. Furthermore, when assessing whether a consultant in Great Britain has breached its duty of care on an overseas project, noncompliance with the principles of CDM 2015 may be taken into account, so consultants based in Great Britain should always consider the spirit of CDM 2015. 

Consultants with offices overseas which are involved in projects in Great Britain will need to ensure that those overseas offices are fully up to speed with CDM 2015. 

Are all the principal designer’s duties qualified? Some of the principal designer’s duties, including the general duty, are expressly qualified by wording such as “so far as is reasonably practicable”. 

Other duties are not expressly qualified, such as the duty to “ensure” all designers comply with their duties (Reg 11(4)). Other duties, including the general duty (Reg 11(1)), are expressly qualified by wording such as “so far as is reasonably practicable”. The HSE L153 guidance describes the duty under Reg 11(4) using the “so far as reasonably practicable” qualification and states that by following this guidance you will “normally be doing enough to comply with the law”. 

However, the regulations suggest that some of the principal designer’s duties are not qualified and therefore a court may also come to this conclusion. Liability for strict obligations may not be covered by PI insurance. 

Can the principal designer be novated to the contractor on a design-and-build (D&B) project? The principal designer must be appointed by the client and be a designer with control over the preconstruction phase. When a D&B contractor is appointed, it is likely to be difficult for another designer to be principal designer. 

If the principal designer role is novated to a D&B contractor, the principal designer will no longer be appointed by the client, so cannot continue the role. If the principal designer is not novated, it will be difficult for the principal designer to retain control over the pre-construction phase. It is our view that the D&B contractor should be appointed as principal designer. 

Consultants continuing to act as principal designer following the appointment of a D&B contractor should consider their role carefully. 

Can consultants refuse to be appointed as principal designer? A consultant can refuse to accept the role of principal designer. Nevertheless, if you do refuse to take on the role of principal designer we recommend that you clarify which member of the project team will be appointed principal designer. If the client does not appoint a principal designer, other than on domestic projects, the client will assume the role. 

If the client does take on the role you should consider whether the client has the necessary skills, knowledge and experience to do so. If not, warn the client that they should appoint a principal designer. 

On domestic projects where a principal designer is required, if the client does not appoint a principal designer, the designer with control over the pre-construction phase will be the principal designer even if not appointed in writing. It is therefore very important to clarify who will be appointed as principal designer on any domestic project so that you do not assume the role by default.   

Who can be a designer/principal designer under CDM 2015? Under CDM 2015, a designer is any person who prepares or modifies a design (including drawings, specifications and bills of quantities) relating to a structure (including scaffolding or a supporting structure), or a product or system intended for a structure. 

Any person who instructs a person within his control to do so is also a designer. The term is therefore defined very widely. The principal designer must (a) be a designer and (b) have control over the pre-construction phase. 

The client can also take on the role of principal designer in some circumstances. The principal designer needs to have sufficient competence in relation to design and health and safety. A former CDM co-ordinator who is not also a designer is unlikely to have sufficient competence to be a principal designer. 

If you would like to discuss the above or have any other queries in relation to CDM 2015 please contact Sheena Sood at Beale & Company on +44 (0) 20 7469 0402 or s.sood@ beale-law.com.