Consultation Opens on the Replacement of ‘CDM’ Regulations (NI) 2007

02 February 2015

Author: Ashleigh Birkett
Practice Area: Health and Safety

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Consultation opens on the replacement of ‘CDM’ Regulations (NI) 2007.

HSENI has opened a consultation in relation to the replacement of the Construction (Design and Management) Regulations (Northern Ireland) 2007 (“CDM NI 2007”) and the withdrawal and replacement of the associated GB Approved Code of Practice (“ACoP”).

The closing date for submissions is 12:00 on 23rd March 2015.  It is envisaged that the new Regulations will come into force in mid to late 2015.  

The Position in GB

A consultation on the equivalent legislation in place in Great Britain has already taken place and 1427 responses were received.  This was described as “among the highest of any consultation undertaken by HSE”.  Subject to parliamentary approval, the new GB Regulations are due to come into force on 6th April 2015. 

HSENI’s consultative document is closely based on HSE (GB’s) equivalent document which was issued in March 2014.

Key Objectives of the HSENI Consultation

When CDM NI 2007 was introduced, one of its key aims was to encourage better risk management.  This included the early integration of health and safety into construction projects and provisions to encourage parties to better work together.  Indeed, the GB ACoP supporting CDM NI 2007 stated:

“These Regulations are intended to focus attention on planning and management throughout construction projects, from design concept onwards. The aim is for health and safety considerations to be treated as an essential, but normal part of a project’s development – not an afterthought or bolt-on extra”.

The key objectives behind The Construction (Design and Management) Regulations (Northern Ireland) 2015 (“CDM NI 2015”) are to further:

  • “maintain or improve worker protection;
  • simplify the regulatory package;
  • improve health and safety standards on small construction sites; [emphasis added]
  • implement the Temporary or Mobile Construction Sites Directive [that is Directive 92/57/EEC] in a proportionate way;
  • discourage bureaucracy; and
  • meet better regulation principles”.

It is not proposed that CDM NI 2007 will be overhauled in its entirety; however, some significant changes have been proposed.

Proposed Changes

CDM NI 2015 will aim to:

1.  Simply the structure of the Regulations:  It is hoped this will make the Regulations more accessible and easier to navigate, which should assist those involved in smaller projects;

2.  Replace the GB ACoP with targeted guidance:  During the GB consultation, concern was expressed about this change and HSE (GB) has, therefore, decided to introduce a revised ACoP once the industry has familiarised itself with the new (currently draft) guidance that is available (see further below).  HSENI is seeking views on adopting this approach in Northern Ireland (namely the withdrawal of the current GB ACoP and approval of the new GB guidance and simplified GB ACoP for use in NI).  It should be noted that ACoPs have a special legal status, unlike guidance which is not compulsory;

3.  Replace the CDM co-ordinator (“CDM-c”) role with the principal designer: This change is aimed at reducing bureaucracy and improving co-ordination rather than the CDM-c role being perceived as an “externalised add-on”;

4.  Replace explicit ‘individual’ competence requirements with a specific requirement for appropriate skills, knowledge, training and experience; and remove the explicit requirement for ‘corporate’ competence: This is an area with which the industry has struggled in terms of the level of cost and bureaucracy that the CDM NI 2007 requirements created;

5.  Align notification requirements with Directive 92/57/EEC and apply the Regulations to domestic clients, but in a proportionate way:  HSENI proposes to remove the domestic client exemption but to “create the default position whereby duties that would fall on a domestic client instead fall to the contractor (or PC [Principal Contractor] where there is more than one contractor)”.  In addition, the Directive requires the appointment of co-ordinators wherever there is more than one contractor.  HSENI plans to adopt this requirement but the guidance is to set out how this can be achieved on smaller projects; and

6.  Amend the notification requirement (i.e. the point at which the F10 must be submitted to HSENI): This will be 30 working days and more than 20 workers on site or 500 person-days.

In addition, the consultation document confirms that the proposed Regulations will “maintain a strong focus on clients”.  In our view, when breaches of health and safety occur on site, investigators (and ultimately the Court) would carefully consider the acts and omissions of clients as well as other involved parties.  This is because clients have a great deal of control and influence in terms of the running of the overall project.

Draft GB Guidance

On 9th January 2015, HSE (GB) issued draft guidance which is intended to complement the new Regulations (including those areas set out above) which are due to come into force in GB in April 2015.  The guidance may be subject to change until the new GB Regulations come into force.

At pages 4 to 6 of the draft guidance, there is a helpful table which summarises the roles and duties arising under the new legislation. 

Notably there is specific information for clients at Part 2, pages 12 to 21 of the draft guidance.  Further to our comments in relation to the role of clients above, the guidance states at pages 14-15: “The client has a major influence over the way a project is procured and managed.  Regardless of the size of the project, the client has contractual control, appoints designers and contractors, and determines the money, time and other resources available”.

Summary

Overall, whilst some of the proposed changes may be welcomed, there may remain concerns amongst the Northern Irish construction industry as to precisely how the new legislation will be interpreted.  We have a slight advantage in this jurisdiction in that we can look to GB to see how the new regime is applied post 6th April 2015.

Northern Irish duty holders (including those who work on smaller construction sites) that may be affected by the proposed changes are advised to take steps to familiarise themselves with the draft Regulations and guidance in advance and consider whether any changes may be required to policies and procedures.

For further information on health and safety law, or to discuss any questions arising from this article, please contact Ashleigh Birkett on [email protected]l.com or 02890 348829. 

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