Practical Law

This month’s Ask the team considers the relevance of the Construction (Design and Management) Regulations 2007 (CDM 2007) to offshore wind farms.

Tracing the legislation

On a first reading, it is not immediately apparent whether the CDM 2007 apply to wind farms. However, their application is made clear by the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2001 (SI 2001/2127) (2001 Order). This is because:

• Regulation 3(1) of the CDM 2007, states that they apply in Great Britain and also as set out in the 2001 Order.
• Regulation 8(1)(a) of the 2001 Order states that Health and Safety at Work etc. Act 1974 applies within the territorial sea to:

“…the construction, reconstruction, alteration, repair, maintenance, cleaning, use, operation, demolition and dismantling of any building, energy structure or other structure, not being in any case a vessel, or any preparation for any such activity” (emphasis added).

• Regulation 2 of the 2001 Order defines “energy structure” as “a fixed or floating structure, other than a vessel, for producing energy from wind or water”.

Applying the CDM 2007

Unfortunately, establishing the legal framework is only the start of the hard work in complying with the CDM 2007 on a offshore wind farm project. The CDM 2007 were written primarily with land based construction projects in mind. This means that deciding precisely what a duty-holder must do to discharge its obligations is not always clear (duty holders include clients, designers and contractors). This problem is exacerbated by the relative scarcity of previous projects to copy. Compared with constructing an office block in London, there is less past experience on which to rely and, of course, every wind farm project is different, presenting its own peculiar challenges.

Those engaged on an offshore wind farm project can address this difficulty in two ways:

• They may find useful information in official guidance on wind farm projects. For example, both Scottish Natural Heritage and RenewableUK have published guidelines that include some information on the CDM 2007.
• Appointing a CDM co-ordinator at an early stage. While this is good practice on every notifiable project to which the CDM 2007 apply, it is particuarly important for something as unusual as an offshore wind farm. In fact, there are professional consultants who specialise in acting as a CDM co-ordinator on such projects and it is good practice to check their relevant experience before making an appointment.

Other factors to consider

Practitioners should also be aware of two other factors that may be relevant in the immediate future:

• The government is reviewing health and safety legislation, including the CDM 2007 and their associated Approved Code of Practice (ACoP).
• Round 3 of the Crown Estate’s offshore wind farm development process is ongoing, with some projects reaching the stage where CDM 2007 issues come into focus.

Health and safety is a high-profile issue in offshore work and will be a important issue from an early stage of any project. As such, it is important that everyone involved is aware of the CDM 2007 and complies with any duties they have.