I'd appreciate some advice as this is outside of my expertise:

A company has leased some of its land to a commercial tenant, the tenant has (with the company's agreement) demolished an old block building and will be rebuilding in its place. The tenant is using their own staff and contractors and the landlord company is not involved in their site or works.

I have two areas of concern:

1. It is not known by the landlord company if the tenant is compliant with CDM and
2. The fence erected by the tenant around the works is not entirely secure.

My question is, what is the liability/responsibility of the landlord?

Tenancy agreements/contracts et al are trumped by health and safety law. Specifically in this case which is deemed as construction work for the purposes of the Construction (Design and Management) Regulations.

In answer to your first question:

If the landlord does not wish to be the client under CDM and they are happy for the tenant to carry out/pay for the work then they can agree in writing that the client duties are passed to the tenant. The tenant as client is then responsible for ensuring the correct appointment and selection of other duty holders.

Ignorance is not a defence. Therefore if a client fails to agree in writing and/or appoint either a principal designer or a principal contractor, the client must carry out their duties as well. 

If a client needs help in making the arrangements they should draw on the advice of a competent person as described under the Management of Health and Safety at Work Regulations 1999.

In answer to your second question:

Where necessary in the interests of health and safety, a construction site must, so far as is reasonably practicable, and in accordance with the level of risk posed, comply with either or both of the following— (a) have its perimeter identified by suitable signs and be arranged so that its extent is readily identifiable; or (b) be fenced off

From your description it would appear they are not complying with CDM as they are not aware of their duties under the law.

Edited by user 25 March 2019 12:55:53(UTC)  | Reason: Typo

Originally Posted by: Ian Bell2

Who is paying for the work/controlling the work?

Sounds like the Tennant. So is most likely the Client under CDM.

As previous, ignorance of the law is no excuse - a basic point of English law.

Hi Ian,

I fully agree with you that under the 2015 Regulations anyone can be the "client", per Regulation 2(1), and therefore it does not have to be the landlord: it is " any person for whom a project is carried out".