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CDM 2015: Can a client appoint a principal designer for part of the project?

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.

Practical Law Iain Murdoch

14 thoughts on “CDM 2015: Can a client appoint a principal designer for part of the project?

  1. It is ironic that the guidance accompanying this change in regs. ignores the most common form of modern procurement, which is Design and Build.

    In a Design and Build scenario, who is principal designer? The Architect, assuming that he had this role up until novation post tender, no longer exercises the ultimate control over the design and the contractor may well impose changes in design, specification, etc. Surely under these circumstances the contractor then becomes PD? Interestingly that is our PI insurers view, also.

      1. Two comments. Firstly, on a design and build contract the project architect or engineer is employed by the contractor, so he/she cannot also be appointed by the client as Principal Designer. (‘A Dog cannot serve two masters.’) The client should appoint the contractor as Principal Designer, as he is in charge of coordinating the design and employs the design team. Secondly, it should be noted that, as defined in CDM 2015, ‘design’ includes design of the contractor’s temporary works etc., so the ‘preconstruction phase’ may continue to the end of construction. As the project architect or engineer generally does not control the design of the contractor’s temporary works, before construction starts he/she should resign as Principal Designer and ask the client to appoint the contractor as PD.

        1. If the D&B contractor does not meet the criteria to become the Principal Designer and the client doesn’t want to appoint the PD directly, can the client pass the responsibility of appointing the PD to the D&B contractor?

    1. On a design and build contract the Principal Contractor is the designer as you point out. Controlling design and indeed safety in design. They often have a Design Manager who is the most appropriate person to lead the PD function. The pre-construction phase does not stop when construction starts, often it continues and indeed the Principal Contractor does have control over the continuation of the pre-construction phase. There appears to be a fundamental misunderstanding of what the pre-construction phase actually means. The HSE agree that on a D&B Contract the Principal Contractor may be the most appropriate party to act as the Principal Designer. This is not at all contrary to the Regulations and from their appointment until handover they will continue to manage the pre-construction phase (which continues into construction)!

      1. Thanks Tara. While we can’t give advice on the blog, we added comments (see below: 28 July 2015) when the HSE clarified some of the issues around D&B contracting.
        The blog is not “maintained” (kept up to date), it is written at a point in time, in this case written as the CDM 2015 were coming into force. Our FAQs are kept up to date and we have made sure they refer to the extended period of the pre-construction phase expressly. See, for example: Practice note, CDM 2015: FAQs: What is a principal designer under the CDM 2015?
        That FAQ already included an extended section on D&B contracting after the HSE’s clarification.

      2. Couldn’t agree more. Safety should rest with the main contractor BUT I only say that because I find a lot of designers woefully ignorant of the safety implications implicit in their designs.

  2. I work as a Architectural Designer and small domestic works are now covered by CDM up to 500 hours which is not a lot.
    In the majority of my domestic projects I an only employed to Stage 3 Building Regulations and have no site responsibilities, this is common even in many small architectural practices.
    Where not specifically appointed as PD I understand I have taken on that role and even when specifically appointed, how can I terminate that role at the end of my design contract.
    My main core skills are as an architectural technician and I do not wish to be debilitated professionally by taking on intentionally or unintentionally the clients responsibility to maintain a safe site long after my core design contract has completed.

    1. We cannot give any advice or comment on specific situations via this blog. However, a designer no longer working on a project (who has been the principal designer) might take some practical comfort from the regulations we refer to above.

      For example, regulation 11(7) expressly refers to the “…duration of the principal designer’s appointment…”.

      It seems to us that the CDM 2015 give a further reason for any party involved in a project to be very clear about concluding that role at the end of their services or works, if there is any room for doubt about whether a continuing duty might arise.

      1. Hi
        I am in the same position and a year on I am still none the wiser.

        I am an RIBA Architect undertaking various small extensions under a D&B procurment method whereby once I have obtained building regulaton approval my appointment comes to an end and the contractor takes over the project.

        I understand that I can novate the PD role over to the contractor, however as I do not have any H&S qualifications what would be your adivce in forfilling the PD role in my aspect of the proejct?

        I can only imagine there must be hunderds of architects in the same position.

        Thanks
        Phil

        1. We can’t give advice via the blog, Phil, sorry. Make sure you know exactly what role (H&S and otherwise) you have been appointed to fulfil and, with regard to any H&S role, that you are “competent” under the CDM 2015 to do what you’ve been appointed to do (Regulation 8). Make sure it is clear exactly when your role concludes.

      2. Hi Iain, thanks for your very helpful blog. I appreciate you raised this point almost five years ago now, but I think its still a very relevant topic for small scale domestic projects.

        As noted above 11(7) refers to the “…duration of the principal designer’s appointment…”

        But my concern is that for domestic projects paragraph 7(2) then states that “If a domestic client fails to make the appointments required by regulation 5—” then (a) “the designer in control of the pre-construction phase of the project is the principal designer”.

        This seems to contradict 11(7) and suggest that the designer in control of the pre-construction phase will remain the PD throughout the project regardless of appointments?

        Any thoughts on which paragraph is likely to overrule the other?

        Many thanks,
        Lawrence

  3. On 27 July 2015, the HSE emailed answers to some FAQs. While the answers do not address the key question in this post, they do confirm that:

    “…Commonly, the [principal designer] is likely to be… for larger projects – a design practice or a technical department of a principal contractor e.g. a principal contractor doing design and build…”

  4. I would have thought that the main contractor is the Principle designer as they are employing and instructing the designer. Ie. If the contractor decides to change the construction from brick to green cheese that would be a pre construction design decision which the contractor should take responsibility for. I guess if the main contractor only requests information and dose not instruct then they would not be seen as the designer but this dose not happen. As the point of a design and build contract is to put the main contractor in control I think they have to take on the principle design role as well.

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