Emerging principals? Implementing CDM 2015

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Summary: CDM 2015 finally went live on Monday. It’s early days, but are there any patterns emerging as to how the new Regulations will be implemented? I think there may be, given what we are seeing and discussions I’ve had with developers, consultants and others.

CDM 2015 finally went live on Monday. It’s early days, but are there any patterns emerging as to how the new Regulations will be implemented? I think there may be, given what we are seeing and discussions I’ve had with developers, consultants and others.

Who is pitching to be appointed as principal designer?

The most significant change under CDM 2015 is, of course, the new role of principal designer and the abolition of the CDM co-ordinator. Unsurprisingly, we’ve seen several project management and cost consultancy practices, which previously offered themselves as CDM co-ordinators, seek appointment as principal designers under CDM 2015. They have a business stream to consider and (in fairness) ought to have many of the skills required to plan, manage and monitor health and safety matters on projects.

It is at least open to a client to appoint, say, its project manager as principal designer. The definition of “design” in CDM 2015 is deliberately broad (it can capture material prepared by a project manager), meaning that the class of “designers” on a project is likewise wide.

But wait. Before a client appoints one of its “designers” as principal designer, it must satisfy itself that the appointee has the necessary skills, knowledge, experience and organisational capability to fulfil the role (Regulation 8). Also, in line with the Health and Safety Executive’s aim of embedding good health and safety practice into the design process, that means the principal designer must be able to control risks to health and safety through the technical pre-construction design phase (Regulation 11). This requires a degree of involvement and insight that a non-technical “designer” may not always be best-placed to deliver.

Who shouldn’t be putting themselves forward as principal designer?

We’ve also seen a specialist health and safety consultant offer itself as a principal designer, even though not separately appointed as a designer on the project. Yet that is exactly what CDM 2015 rules out, by abolishing the freestanding role of CDM co-ordinator and seeking to bring health and safety risk management centre stage. Please let’s move away from this “solution” before it misleads anyone.

Who do clients wish to appoint as principal designer?

Some of our developer clients firming up policies to implement CDM 2015 have decided that, where possible and at least for the pre-construction phase, the principal designer should be chosen from among the core design team (that is, it should be an architect or engineer). In part, they see this approach as adhering to the spirit of CDM 2015, even if (as we’ve seen) other approaches are in theory permitted.

Certainly, there is a clear logic in the lead technical designer – who will be responsible for overseeing and integrating the design as a whole – also taking on the task of managing the designing out of health and safety risks on a project. But it raises a question as to how ready all architects and engineers are to take on this role. I will come back to this point below.

We’re also seeing clients considering whether to appoint the principal contractor as principal designer during the construction phase. Again there is some sense in this, especially where the principal contractor will be taking on overall responsibility for design co-ordination once construction has started (as will be the case on most design and build projects).

This approach also recognises that the level of the principal designer’s input will ramp down in the construction phase, until the only duty remaining will be to finalise the health and safety file (a point implicitly acknowledged in the Regulations). If so, it may be appropriate on some projects to appoint the same person as principal designer and principal contractor during construction.

Are architects and engineers ready for CDM 2015?

Are architects and engineers willing and able to take on the role of principal designer? The picture is currently mixed. The larger practices, particularly those that are multi-disciplinary and offered a CDM co-ordination service under CDM 2007, seem well-placed to adapt.

However, smaller designers – or those that have not previously offered health and safety services – look like they still have some way to go. Some are in the course of upskilling; I know of one architect who believes that clients will require it to become principal designer as an adjunct to its lead design role.

But from where will consultants obtain the additional skills required? Growing a strong in-house capability must be the preferred option. Equally, over the next few months, we can expect to see some architects and engineers look to discharge the role by buying in additional capability from specialist health and safety consultants.

In fact, we’ve already seen some CDM co-ordinators look to repackage their expertise so that it can be sold as a service to other consultants, enabling them to perform the principal designer function. It remains to be seen whether all architects’ and engineers’ professional indemnity insurers will stand behind such arrangements (I’ve already heard some doubts). The alternative for clients may be that, for now, they have to appoint someone other than a technical “designer” as their principal designer, even if that is not their preference.

A new role for old CDM co-ordinators?

CDM 2015 places enhanced duties on clients, but doesn’t oblige the principal designer to advise the client on how to discharge those duties. More sophisticated clients may need little assistance. Others will, so it is unsurprising that consultants who previously acted as CDM co-ordinators are now offering a standalone general health and safety advisory service.

I’m doubtful that this standalone role will gain much traction. Instead, we should expect to see it being grafted on to the role of principal designer as an additional duty, where required.

Final thoughts

The question underlying all of this is the extent to which the construction sector is ready to move to CDM 2015. As I’ve indicated, the picture is patchy. The need for many consultants to upskill remains, especially for smaller design practices. In any case, there are signs that some clients are looking to encourage the supply side to deliver on CDM 2015 in a way that is not necessarily the line of least resistance. That process will inevitably become more focused as the six-month transitional period winds down and as new projects are launched.

This article was first published by Practical Law Construction as part of our regular construction blog series in which we share our practical experiences of working in construction and engineering and give our opinion on the current and future legal developments that shape and will shape the industry. To read more from the series, visit the Practical Law blog.

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