The Construction (Design and Management) Regulations 2015 (SI 2015/51) (CDM 2015) are in force from 6 April 2015. Putting aside the CDM 2015’s transitional arrangements, it is not immediately clear whether a client may appoint a principal designer for only the first part of the project.
Who can be principal designer?
Regulation 5 of the CDM 2015 requires the client to appoint a principal designer (and a principal contractor) if there is (or is likely to be) more than one contractor on the project. The client must appoint in writing:
“…a designer with control over the pre-construction phase as principal designer”.
This seems clear. The principal designer must:
- Be a designer.
- Have control over the pre-construction phase.
If a person does not fit this description, on the face of it, the client may not appoint them to the principal designer’s role.
Regulation 5(3): client fills the void
If the client does not appoint a principal designer, regulation 5(3) of the CDM 2015 requires the client to:
“…fulfil the duties of the principal designer in regulation 11 and 12”.
Regulations 11 and 12 require the principal designer to manage health and safety at the pre-construction phase and produce a health and safety file.
Appoint for pre-construction phase
It is easy to imagine a scenario where a client wants to appoint a key designer (who would fulfil the principal designer’s role) for the pre-construction phase only. For example:
- On a design and build project, the client (the employer under the building contract) may appoint a designer to develop its employer’s requirements, then either novate or conclude that appointment when entering the design and build contract.
- On a traditional contract, the client may wish to appoint an architect to develop the design, but then conclude that appointment and appoint a different contract administrator to administer the building contract during construction phase.
If the principal designer carries out its functions for the pre-construction phase, can the client then continue without a principal designer (or find another way)?
Contractor as principal designer?
As written, in both the scenarios referred to above, regulation 5 of the CDM 2015 suggests that the contractor cannot be the principal designer. Even where the contractor is a designer, in those scenarios, it does not seem to have control of the pre-construction phase of the project.
Clearly, in some situations, a contractor may be involved in the pre-construction phase and may fulfil the principal designer’s role, if competent under the CDM 2015 to do so.
Health and safety file
One of the key obligations of a principal designer is to prepare the health and safety file. This starts during the pre-construction phase, but is a continuing obligation. Under regulation 12(6) of the CDM 2015, the principal designer must ensure that the file is:
“…reviewed, updated and revised from time to time to take account of the work…”.
Regulation 12(8): contractor’s obligation if principal designer’s appointment concludes
So what is the possible confusion referred to at the start of this blog? Regulation 12(8) of the CDM 2015 states:
“If the principal designer’s appointment concludes before the end of the project, the principal designer must pass the health and safety file to the principal contractor.”
Therefore, the CDM 2015 expressly contemplate the possibility of the principal designer’s appointment ending before the end of the construction phase. However, regulation 5 requires the client to appoint a principal designer, without giving a time at which that appointment may conclude. Given that the express duties of a principal designer do not conclude at an early stage of the project, this suggests a continuing obligation. Additionally, if the client does not appoint a principal designer, the client must fulfil the principal designer’s duties.
It seems to me that, in this respect, the CDM 2015 lack some clarity. Regulation 12(8) deals with the situation in which a principal designer is appointed and its appointment ends. However, regulation 5 doesn’t suggest that appointment may end before the project ends. Further, regulation 12 does not deal with the situation in which the client never appoints a principal designer. Does the principal contractor have to assume a principal designer’s responsibilities if one was never appointed? In this context, regulation 12(8) seems potentially at odds with the rest of the CDM 2015.
What this all may mean
Having thought about this, there are at least two practical lessons.
First, if appointing a principal designer whose work on the project will conclude before completion of the construction phase, the client should decide whether it can appoint the principal contractor as principal designer. If it can, it should perhaps do so. If not, it should arrange a formal handover of the health and safety file, referring to regulation 12(8). Having done that, it should be prepared to “fill the gap” and carry out itself any principal designer’s responsibilities that would otherwise fall through the cracks. If it is not competent to do that, then we have gone full circle, and the client should continue the appointment of the principal designer (even if that continuing appointment is for a more limited role now that formal design services are complete).
Second, if the appointment of the principal designer ends suddenly or if the client did not appoint a principal designer, it seems that regulation 12(8) can’t force a principal contractor into producing a health and safety file out of thin air. (The regulation expressly refers to the principal designer passing the file to the principal contractor.) A principal contractor should be wary in this situation, expressly communicating what it can and cannot do and, if it believes that the client doesn’t understand the client’s CDM 2015 obligations, the contractor should seriously consider not working (or not continuing to work) on the project (see regulation 15(1), CDM 2015).
Whatever your view, this is an area in which to exercise caution. The underlying message of the CDM 2015 is not to compromise health and safety on construction sites. That message should not be lost when seeking modest cost savings (by not appointing a competent principal designer) on a construction project.