39 Offices in 19 Countries

The Construction (Design & Management)

Regulations 2007 (“CDM”)

Understanding the role of CDM

Regulations in the UK legal landscape

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Why do we need the CDM Regulations?

• The CDM Regulations recognise that construction work is

challenging and dynamic and therefore difficult to manage from a

risk management perspective.

• In terms of the effective management of construction projects the

CDM Regulations concentrate on:

Planning

Co-operation

Co-ordination

Competency

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CDM 2007

• ADDRESSING IDENTIFIED DEFICIENCIES OF CDM 1994

• Health and safety management an integral part of project –NOT

AN AFTERTHOUGHT or BOLT-ON EXTRA

• Restore client to pivotal role in chain of command

• Improve planning and management of health and safety of

projects from the start and throughout the project

• Identify and eliminate/reduce risks at the design stage

• Sequential approach to appointments to ensure “the right

people get the right information at the right time”

• Prescriptive competence assessment criteria

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Context

A mistake to view CDM 2007 in isolation

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The bigger regulatory picture

• CDM 2007 supplements other health and safety legislation

• Health and Safety at Work etc. Act 1974 (“HSWA”)

• Management of Health and Safety at Work Regulations 1999

(“MHSWR”)

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HSWA

General duties on employer

Section 2 – devise and implement safe systems of work, so far as

is reasonably practicable, in respect of own employees

Section 3 – conduct business activity in such a way as is safe, so

far as is reasonably practicable, in respect of non employees

(contractors or members of public)

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MHSWR

Regulation 3 - Risk Assessment

Regulation 5 - Arrangements

Regulation 7 - Competent person provision

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Context

A mistake to think that CDM 2007 only applies to conventional

“bricks and mortar” projects.

NOTE: The very wide definition of “construction work” –

Regulation 2

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CDM 2007

Notification criteria:

• Projects (other than for a domestic client) notifiable if:

30 working days; or

500 person days

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CDM 2007

If project notifiable, additional duties are imposed on duty holders

under Part 3

N.B. Remainder of slides assume the duties will be those

imposed by Part 3

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CDM 2007

The Client

• Pivotal role in terms of management of construction project

• No scope for Client to appoint agent

• More than one client – can elect one client as only client

(paragraph 42 of ACoP)

Client Appointments

• Default provision – Regulation 14(4)(a)

CDCM

PC

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CDM 2007

CDM Co-ordinator (“CDMC”)

• Early appointment

• No designer shall commence work unless appointed

• Advise client in respect of client duties

• Co-ordinate the design function

• Facilitate good communication between client, designers, PC

and contractors

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CDM 2007

Onerous responsibilities on Designer

• Eliminate or reduce the risks at design stage

• Design project specific

• Provide information about remaining risks

• Lead designer (paragraph 48 of ACoP)

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CDM 2007

Principal Contractor

• There can only be one Principal Contractor at any one time

• Planning, management and monitoring of activity during

construction phase

• Should have input at design stage

• Competency is key

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CDM 2007

Appointments – all parties

• Appointees should not allow themselves to be appointed if not

competent

• Appointers should vet competency of appointee

• Competence should be project specific

• Beware multiple role holders

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CDM 2007

Early collaborative approach between:

• Client

• Designer

• CDM Co-ordinator

• Principal Contractor

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CDM 2007 – General Consideration

1. Does project involve “construction work”? (Regulation 2)

2. If so, CDM provisions need to be incorporated into contractual

provision

3. CDM roles and responsibilities need to be implemented in

terms of practical delivery of project

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CDM 2007 – Guiding Principles

Liability will be commensurate with a party’s level of control as:

1. Duty holder

2. Contractual provision

3. Actual control in terms of dictating system of work etc.

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CDM 2007 – Guiding Principles

• Level of control should be aligned with the roles and

responsibilities envisaged by health and safety legislation

• Exercising too much or too little control will increase liability

• Getting level of control correct is key to managing liability risk

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Joint Ventures – What the HSE say:

There may be occasions when two or more companies combine their

resources to carry out a joint venture. This can take different forms:

1. Each individual company carries out a separate contract

although they may co-operate for administrative or organisational

purposes.

Each company would be liable for its own contraventions and could therefore

be prosecuted in its own name without reference to any of the other companies

involved.

2. The companies involved contribute resources to the formation of a

new company for the purpose of the joint venture.

This separate company is a legal person which can be prosecuted in its

corporate name.

3. The companies involved conduct the venture under a business

name without forming a new company.

This will constitute a partnership in which the companies are the partners. They

will be jointly and severally liable for contraventions arising from the venture.

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The Joint Venture (“JV”)

A question of timing –

At the time the parties are deciding whether to enter into a joint

venture and what type of joint venture they should consider how

that organisation will align itself with CDM arrangements.

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The JV

Will the JV be the client?

Yes if incorporated JV, but not necessarily if unincorporated JV.

Will a party to JV also be a CDM role holder?

This is the time to consider the commercial arrangements and the

health and safety arrangements, in particular CDM framework, in

tandem.

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The JV

Sequential approach with commercial considerations as driver and

health and safety (CDM) as passenger is contrary to one of main

stated objectives of CDM namely:-

“Health and safety management should be an integral part of the

project NOT AN AFTERTHOUGHT OR BOLT ON EXTRA”

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Jurisdiction

JURISDICTION DICTATES THE RELEVANT REGULATORY

FRAMEWORK

The Health and Safety at Work etc. Act 1974 (“HSWA”)

(Application outside Great Britain) Order 2013 (“the Order”) came

into effect on 6 April 2013

See also Offshore Information Sheet No1/2013.

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Jurisdiction

Purpose of the Order:

consolidate 2001 and 2011 orders “to maintain HSE’s ability to

regulate work activities and ensure statutory protection is extended

to workers and work activities associated with ‘energy

structures’ (wind farms) which are being built beyond the

Territorial Sea within the Renewable Energy Zone.

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Jurisdiction

Article 9 of the Order

1. The prescribed provisions of HSWA apply to within: -

a) The Territorial Sea – 12 nautical miles adjacent to and measured

from the UK coastline

or

b) A Renewable Energy Zone – (introduced by 2011 Order)

in relation to any ‘energy structure’.

2. ‘Energy Structure’ – a fixed or floating structure or machine,

other than a vessel, which is, or is to be, or has been, used for

producing energy from water or wind.

* 2013 revision to 2001 definition

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Renewable Energy Zone

UK Territorial Sea

Internal water

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UK jurisdiction

1. 12 nautical mile limit; and

2. Extension of 12 nautical mile limit by REZ (UK has adopted

EEZ as REZ)

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International jurisdiction

Article 60 of UN Convention of Law of Sea confers on a country

“exclusive jurisdiction over such artificial islands, installations and

structures, including jurisdiction with regard to…health and

safety…laws and regulations” for an area extending 200 nautical

miles from the coastline of that country – known as Exclusive

Economic Zone (EEZ).

Article 56 – includes the exploitation of the EEZ for the production

of energy from water, current and wind.

Where the distance between two countries is less than the above

three scenarios, the ‘equidistance principle’ will ordinarily apply.

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Contact

Gary Lewis

Senior Associate

T: 0161 830 5373

M: 07825 204407

F: 0870 460 2910

E:gary.lewis@squiresanders.com

Squire Sanders (UK) LLP

Trinity Court

16 John Dalton Street

Manchester

M60 8HS