Construction- United Kingdom

Introduction

On April 6 2007 the Construction (Design and Management) Regulations 2007 replaced the Construction (Design and Management) Regulations 1994. The key changes include:

• the replacement of the role of planning supervisor with that of coordinator;(1)
• the imposition of greater responsibilities on clients; and
• the removal of the civil liability exemption in respect of civil actions by employees against employers, which now allows employees to take action in civil courts for injuries caused by failure to fulfil duties under the regulations.

An Approved Code of Practice providing practical guidance has also been issued.

Obligations of Duty Holders

The new regulations categorize five main duty holders: clients, designers, contractors and, for projects which are deemed 'notifiable', coordinators and principal contractors. The distinction between 'notification' and 'application' under the old regulations has been replaced with a distinction between 'notifiable' and 'non-notifiable' projects. A project is notifiable (and additional requirements apply) if the construction phase is likely to involve more than 30 days or 500 person days of construction work. All duty holders have various general obligations, including requirements to:  

• appoint only competent duty holders (as specified in the code of practice);
• cooperate with others concerned in the project to ensure compliance with the regulations; and
• coordinate their activities with one another to ensure the health and safety of all those involved in or affected by the construction work.

Specific obligations also apply to the various duty holders.

Clients

Clients are obliged to take reasonable steps to ensure that there are adequate management arrangements for health, safety and welfare at a site. It is no longer possible for a client to appoint a client's agent to assume its responsibilities (including criminal liabilities). However, a group of clients can appoint one or more of their number to be the client for the purposes of the regulations, although the other clients retain certain obligations.

For all projects - whether notifiable or not - the client's obligations include: (i) taking reasonable steps to ensure that management arrangements are put in place and maintained, such that there is no risk to the health and safety of any person as far as is reasonably practicable; and (ii) ensuring that every designer and contractor is given pre-construction information.

Additional obligations for notifiable projects include:

• appointing a coordinator and principal contractor - if no such appointment is made, the client is deemed to fulfil these roles;
• providing pre-construction information to the coordinator;
• ensuring that construction does not begin until the principal contractor has prepared a suitable construction phase plan and welfare facilities can be provided; and
• ensuring that the coordinator has all the health and safety information necessary for the health and safety file.

Contractors

A contractor's obligations for all projects include:

• ensuring before starting work that the client is aware of its duties under the regulations and that reasonable steps have been taken to prevent unauthorized access to the site;
• planning and managing the work so that, as far as reasonably practicable, it is carried out without health and safety risks;
• ensuring that subcontractors it engages in connection with a project are informed of the minimum amount of time which they will be allowed for planning and preparation before beginning construction work; and
• providing workers under its control with suitable information, training and welfare facilities.

Additional obligations for notifiable projects include:

• not commencing work until it has the relevant part of the construction phase plan and the names of the coordinator and principal contractor, and knows that notice has been given to the Health and Safety Executive (HSE);
• supplying health and safety information and the names of the subcontractors to the principal contractor;
• complying with the site rules and directions of the principal contractor; and
• taking all reasonable steps to ensure that construction work is carried out in accordance with the construction phase plan.

Designers

Under the old regulations, designers had no duty to ensure that their designs were safe to use. However, the new regulations impose obligations which include: 

• ensuring before starting work that the client is aware of its duties under the regulations;  
• where possible, eliminating hazards which give rise to risks and reducing residual risks; and
• providing design information to assist others in complying with their duties under the regulations.

A further obligation for notifiable projects is that work (other than initial design work) should not commence until a coordinator has been appointed.

The new regulations also broaden the definition of 'designer'. There is now a remote risk that a landlord under an agreement for lease or licence to alter which approves or disapproves of its tenant's works may fall within the new definition. Landlords which are held to be designers and to have breached the duties of a designer will be liable to a fine. As a result, landlords must take care to avoid having any input into the design process.

Coordinators

On notifiable projects the client must appoint a coordinator as soon as practicable after initial design work or other preparation for construction work begins. The coordinator must notify the project to the HSE and, among other things:

• assist and advise the client on its duties under the regulations, the competence of appointees and the adequacy of arrangements for controlling risks;
• facilitate the coordination of health and safety measures by parties involved in the project; and
• prepare, collate and distribute health and safety information, including the health and safety file.

Only initial design work should be undertaken before the coordinator is appointed. As project originators are legally the client at the start of the project, clients must consider the early appointment of a coordinator if anything more than initial design work is to be carried out. For example, public sector bodies using competitive dialogue processes may need to appoint a coordinator early in such processes (ie, before a successful tenderer is selected).

Principal contractors

On notifiable projects the client must appoint a principal contractor as soon as practicable. The principal contractor's duties are primarily the same as those of contractors, although the principal contractor's additional duties include:

•  preparing, reviewing and updating a construction phase plan which ensures, as far as reasonably practicable, that work can be executed without risk to health and safety - if necessary, the principal contractor must consult contractors as appropriate before finalizing the plan; 
• drawing up site rules;
• planning and monitoring construction to ensure that, as far as reasonably practicable, it is carried out without risk to health and safety; and
• giving reasonable directions to contractors and ensuring that they have sufficient information to carry out their work without risk to health and safety.

Health and Safety File

A health and safety file is required for notifiable projects. In addition to addressing certain specific matters, it must contain information in respect of the project which will be needed in order for future construction work (including cleaning, maintenance, alterations and refurbishments) and demolition to be carried out safely. Various parties have legal duties in respect of the file. Among other things, coordinators must prepare, review and amend or add to the file as the project progresses and provide it to the client at the end of the project. Clients, designers, principal contractors and other contractors must supply the information necessary for compiling or updating the file.

Transition to the New Regime

The new regulations apply to projects which began before April 6 2007, but certain modifications apply as follows:

• If the appointment of the coordinator or principal contractor occurred before the new regulations came into force, the client must appoint either or both of them as soon as is practicable.
• If the client had already appointed a planning supervisor or principal contractor under the old regulations, the appointee will be deemed to become the coordinator or principal contractor under the new regulations, unless the client appoints someone else.
• If a client's agent was appointed under the old regulations, the client may request that he or she continue to act as agent. If the agent agrees, the client's responsibilities under the new regulations will transfer to the agent until the appointment is revoked, the project ends or five years elapse from the entry into force of the new regulations, whichever is earliest.
• People deemed to have been appointed under the new regulations must ensure that they are competent to exercise their responsibilities under the new regulations by April 6 2008.
• If a planning supervisor or principal contractor appointed under the old regulations is reappointed under the new regulations, the client must ensure that the planning supervisor or principal contractor is competent to exercise its responsibilities under the new regulations by April 6 2008.
• No further notification to the HSE is required for a notifiable project if notice was given under the old regulations.

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