Replacement site safety regulations could give construction industry more flexibility, says expert

Sean Elson of Pinsent Masons, the law firm behind Out-Law.com, said that although the proposed changes to the Construction (Design and Maintenance) (CDM) Regulations reflected "a good deal of what was trailed for much of 2013", the new regime would introduce substantial changes from its anticipated April 2015 implementation.

The biggest change is the removal of the need for a standalone CDM coordinator, with responsibility for coordination with the requirements of the regulations instead being assigned to the 'principal designer' within the project team. The duty to assess 'competence' will be replaced with a new duty on 'information, instruction, training and supervision'; and the existing Approved Code of Practice (ACoP) will be replaced with tailored guidance.

"The HSE wishes to use this as an opportunity to remove some of the overly bureaucratic processes that have grown up within the construction industry regarding CDM coordination and establishing 'competency'," Elson said. "This is a 'holy grail' in relation to complex projects - whether the CDM revision will be successful alone in achieving this will have to be seen."

"The HSE is putting the onus on the construction industry to look at how it defines competence and the revision could provide opportunities to reshape training and various industry 'passport' schemes," he said.

The existing CDM Regulations came into force in April 2007, and implement some of the requirements of the EU's Temporary or Mobile Construction Sites (TMCS) Directive. They stipulate minimum standards of health, safety and welfare provisions during the construction phase of a project, and require risks to be planned for and managed from the design concept onwards.

According to the HSE, the proposed changes are designed to improve worker protection but also to deliver cost and administrative savings to businesses. They include a shortening and structural simplification of the regulations themselves, and replace detailed and prescriptive requirements for individual and corporate competence with a more generic requirement for those appointing others to carry out construction work to ensure that thy have received "appropriate information, instruction, training and supervision to allow them to work safely". The new regulations would also extend the CDM regime to include domestic clients.

The new role of principal designer would replace the existing CDM coordinator role. This new role would be responsible for preconstruction coordination, as required by the TMCS Directive. The client's duty to appoint a principal designer and a principal contractor would be triggered where there is more than one contractor, or it is reasonably anticipated that there would be more than one at any time. If the required appointments are not made the client would be expected to fulfil these roles itself, unless the client was a domestic client in which case these roles would be deemed held by the first designer and contractor appointed in the preconstruction and construction phases.

"Once again, the HSE has stressed in the consultation document the important role that a CDM 'client' has within the successful design, planning and delivery of construction projects," said health and safety expert Sean Elson. "For that reason the revised CDM proposals are relevant to anyone who commissions construction works."

The consultation closes on 6 June 2014.