There’s a change in the draft CDM regulations 2015 that could be significant for architects
Hidden away in the revised draft of the 2015 CDM Regulations is a change which could have far-reaching implications for architects.
Previous transposition into UK law of European Council Directive 92/57/EEC – often referred to as the ‘temporary or mobile construction sites directive’, and the underpinning legislation behind CDM – has until now excluded application to ‘non- commercial’ clients – those not carrying out work as part of a business.
The EU has long argued that this exclusion is incorrect, and the UK government has finally agreed, so duties for non-commercial clients have been included in the 2015 draft. CDM 2015 calls them domestic clients, although the correct legal definition for the vast majority is probably ‘consumers’, which means they enjoy extra protection under consumer protection legislation.
One of the main pieces of this legislation is the Unfair Terms in Consumer Contracts Regulations (1999 as amended). These require contract terms to be in ‘plain, intelligible language’. Arguably, that CDM 2015 appears to fall short using that test. However, it definitely presents an opportunity for architects to prove their worth and add value to the project by steering clients through the CDM maze.
So what does this mean in practice? Well, first and foremost, it means that from 6 April, a whole group of clients, who have no previous experience or understanding of CDM, will be exposed to the new 2015 regime. It is highly likely, therefore, that these clients will need advice on how to carry out their new role. Some will not even be aware of it.
From 6 April, a whole group of clients, who have no previous experience or understanding of CDM, will be exposed to the new 2015 regime
The HSE has produced a draft Approved Code of Practice L153. This is essential reading for architects between now and April. It summarises the duties of client as twofold: first, make suitable arrangements for managing a project. This includes making sure that: other duty holders are appointed, and sufficient time and resources are allocated. Secondly, clients must also make sure that: relevant information is prepared and provided to other duty holders, the principal designer and principal contractor carry out their duties, and welfare facilities are provided.
Interestingly, there seems to be a bit of confusion in the regulations with regard to domestic clients.
New Regulation 7 states: ‘Where the client is a domestic client the duties… must be carried out by: the contractor for a project where there is only one contractor; the principal contractor for a project where there is more than one contractor; or the principal designer where there is a written agreement that the principal designer will fulfil those duties. If a domestic client fails to make the appointments required by regulation 5: the designer in control of the pre-construction phase of the project is the principal designer; the contractor in control of the construction phase of the project is the principal contractor.
If the domestic client’s duties are carried out by the contractor, (portrayed in Regulations 7.1(a) and (b) above), this presents something of a conundrum. Typically, designers are engaged before contractors, so surely the HSE intends this advice to be given sooner rather than later. After all, the architect will be asked for advice on a range of other topics, including contract choice and procurement.
CDM recognises that clients have a major responsibility when it comes to health and safety, but they may not have the expertise to carry out their duties. This is where the architect, as first point of contact, should take a pivotal role. It may not end up being principal designer, but it can certainly point their client in the right direction, and assist with the process, meaning that the client is well satisfied.
And a satisfied client means repeat business.
Roland Finch is technical author at RIBA Enterprises
For an overview of the key changes see CDM 2015: A Practical Guide for Architects and Designers, published April 2015