steve e ashton wrote:And the appeal case detail here:
http://www.bailii.org/ew...EWHC/Admin/2014/427.htmlIt appears the Client knew that an asbestos survey was required (had done type 2, which noted need for type 3). The Principal Contractor included the need for an asbestos survey (type 3) in his Construction Phase Plan.
Yet apparently HSE was justified in serving notice the CDM-C had failed in his duty by NOT advising the client (and the PC in pre-construction information) that an asbestos survey was required.... Even though this information was included in the asbestos survey (type2) which the client supplied and was included in the PCI which WAS supplied to the PC.
So it seems that HSE (and the tribunal upholding the improvement notice) believe that the law requires a CDM-C to tell the client and PC what they already know....
The actual text (in Paragraph 41 of the appeal judgment) of the type 2 survey (which was a report from White Young Green Environmental) only stated:
“Prior to demolition or major refurbishment it is recommended that a fully intrusive WYGE type 3 asbestos survey be conducted, under controlled conditions where appropriate.”
A "recommendation" is a long way from saying something is "required" or "needed". A lot of the time recommendations are over cautious simply to cover the possibility that something might go wrong and to avoid liability if it does. If all companies strictly adhered to all recommendations made in reports, there would undoubtedly be a lot of money spent that need not have been spent. Whether or not we should act on recommendations is where the competent advice of the contractor / CDM coordinator should come into play. It's easy in hindsight (even for incompetent advisers) to identify which recommendations are needed and which are not.
The improvement notice served on MWH stated:
“…I… give you notice of my opinion that…you….are contravening the following statutory provisions:
Health & Safety at Work etc. Act 1974, Section 2(1) & 3(1) Construction (Design and Management) Regulations 2007, Regulation 4 & 20. The reasons for my said opinion are You, having been appointed in the role of CDM Coordinator by the Client, have identified and collected the pre-construction information, namely the asbestos survey report, without having the necessary level of competence to be able to give suitable and sufficient advice to the Client as to whether the information provided was adequate in relation to the construction work being undertaken"
It's difficult to argue with this because MWH did not follow up on the recommendation with suitable or sufficient advice as to whether the "recommendation" needed to be a "requirement" in this particular case.
The principal contractor didn't include the "need" for the asbestos survey (the word "need" is not mentioned anywhere), they had allowed for it in their construction phase plan. The fact that there was no survey (which had been included in the Construction Phase Plan) but work still commenced just goes to show that there was yet another means of being able to identify this gap or failure that was missed by the company who was ultimately responsible for coordinating the project, MWH.
For MWH (as the project coordinator) to try to absolve itself of the responsibilities of competently coordinating a project, by blaming both the client and the principal contractor in its various submissions, suggests that we do need legislation to provide clarity on this issue. It does not suggest bureaucracy gone mad.
My advice is that you should not put yourself forward for the role of project coordinator (and get paid handsomely for it) if you intend to rely on your client and subcontractors to do your job for you and make up for your shortcomings. It defeats the point of having a specifically appointed CDM coordinator if all other parties have to repeat the same steps as the CDM coordinator just to avoid the risk of a prosecution - now that would be bureaucracy gone mad!
IMO this was a sensible decision on the part of the HSE and tribunal.