Some 20 years ago, on 31st March 1995, construction health and safety legislation underwent significant change with the introduction of the CDM regulations 1994 following the publication of a European Directive on the minimum health and safety standards for temporary or mobile construction sites. The regulations were intended to more clearly integrate health and safety during the whole lifecycle of the construction project, rather than just the construction phase.
CDM regulations 1994 did not confer a right of civil liability for injury claims, other than where work was permitted to start where no effective health and safety plan was in place, or where unauthorised persons were allowed on site. However breaches of the legislation could lead to criminal prosecution.
Just over a year later in September 1996, final implementation of the European Directive was achieved with the introduction of the Construction (Health, Safety and Welfare) regulations 1996. These regulations were intended to simplify and modernise existing and widespread health and safety regulations in the construction sector, and provide specific detail covering defined construction activities, for example, using access equipment or support for excavations. Breaches of the regulations gave rise to civil liability in compensation claims for injury.
Over time, this new legislation was considered to result in an overly cautious, costly and bureaucratic approach to compliance, where important health and safety information was not effectively communicated. Concerns were raised from within the construction industry and the Health and Safety Executive (HSE) that the expected health and safety improvements were not being delivered.
Following an industry wide consultation in 2002, this in turn led to the introduction of the CDM regulations 2007 which merged and modernised the two preceding pieces of legislation with the key aim of reducing the risk to health and safety of all parties involved in a construction project, from inception to project completion and beyond.
The 2007 regulations identified five duty holders for a construction project – the client, designer and contractors, but for ‘notifiable’ projects where construction work was more than 30 working days in duration (or more than 500 person days on site) there was an additional requirement for the client to appoint a CDM Co- ordinator and a Principal Contractor to assist with planning, co-ordination and construction management.
A requirement was introduced that pre-construction information should be prepared, including details of the CDM planning period, intended to allow contractors sufficient time to assess health and safety issues and plan their works before commencing construction. Alongside this, the ‘Construction Phase Plan’ (CPP) was introduced, which set out the management arrangements during construction, and a ‘Health and Safety File’, containing key health and safety information for use in future work on the structure. Finally, an Approved Code of Practice (ACOP) replaced the construction (Health Safety and Welfare) regulations 1996, giving clear and detailed advice and guidance to duty holders on design and management issues as well as site safety and compliance.
Civil liability for breaches of CDM 2007 regulations was conferred to employees of duty holders, and to others in more limited circumstances. However, this was revoked on 1st October 2013, following introduction of the Enterprise and Regulatory Reform Act 2013. In practice, from that date breaches of the regulations, whilst not conferring civil liability, would still be persuasive that an employer was negligent and in breach of its common law duties.
In 2014, some seven years on from the introduction of the 2007 regulations, HSE undertook a consultation to effect further changes, having evaluated that whilst the model of risk management embedded within CDM 2007 had become standard practice in the more organised parts of the construction industry, more needed to be done to embed the approach with smaller contractors.
The consultation had the stated aim to make the regulations easier to understand, replace the CDM co- ordinator role with that of principal designer, replace the ACOP with targeted guidance, replace the detailed and prescriptive requirements for individual and corporate competence with a more generic requirement, align notification requirements with the Directive and apply the Regulations to domestic clients but in a proportionate way.
The results of this consultation are the CDM regulations 2015, which came into effect on 6th April 2015.
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For further information please contact Andrew Thornton, Partner, Construction on +44 (0)20 7528 4489