Friends: I have not yet read the proposed new CDM regs nor guidance provided, as being honest I am quite sick of the whole thing, so things may be in there that I do not have knowledge of yet but hey-ho here is my question

""Considering that I have it in writing from the HSE that they have no independent enforcement authority in a domestic private home and can only enter a domestic premises under the wing of the police or similar enforcement agency who have authority in a domestic private home how can the HSE enforce CDM in a domestic home that is private land especially where the home owner [client?] will not let them on their property as is the home owners right?""

if anybody has the answer to my question it would be good to share it

regards all and good thinking

It may be the case that unsafe work on domestic properties only ever gets picked up if it is visible from the street and an HSE inspector happens to passing and photographs the offence.

I was talking to a chap at my golf club at the weekend and he said he was the proprietor of a building company who work on domestic and commercial projects. I asked "Are you aware of the changes to CDM which comes into force in April"? His reply - "What's CDM"? Enough said.

Bob

Most typical domestic projects will fall outside the notifiable threshold, some that do will not be notified anyway, so the HSE will be unaware of all these domestic jobs - never mind gaining access for enforcement purposes.

What is the point of the question? What difference does it make, whatever the answer is?

There are much bigger questions that actually have some impact on what people will do to comply (or not) with CDM, so banging on about this irrelevant loophole is a waste of effort, in my view.

Are PD duties are absolute?
Must the PD exercise any site management function?
Must the PD be a designer on this project?
What is the standard of duty for the preconstruction information?
What constitutes 'control over the preconstruction phase'?
Is a labour-only agency person a contractor?

Frankly, 'do HSE inspectors have a statute right to inspect kitchen cupboards' doesn't even register on the scale of unresolved questions.

Are you saying the law should be scrapped because HSE won't be able to see every kitchen fitout in the land? Are you going to be advising your clients that they should ignore CDM when working at the back of properties? Are you going suggesting other people should advise their clients to do that?

You say "it would be helpful to us all". How, exactly?

You've concluded that HSE have no rights of access. So what? TV Licensing have no rights of access, but they still manage to catch people and a commercial organisation still thinks it worth paying for inspectors.

Achrn: I can offer you my understanding on first 4:

Are PD duties are absolute? YES - Regulations State "must" - other than application of principles of prevention, which apply sfarp.

Must the PD exercise any site management function? NO

Must the PD be a designer on this project? YES, and in control. (Definition at Reg 2, Reg 5)

What is the standard of duty for the preconstruction information? From what I can see, also absolute ('must')

Must the PD be a designer on the project ? How does that work when the default position of failure to appoint reverts to the Client fulfilling the role who will probably not be a designer ? Will appointment of someone other that a designer to fulfill the role be considered a breach by the HSE even if all requirements of the role have been met ? Doubt it.

Seems pretty clear-cut to me.

CDM2015 Reg 2 (definitions):
“principal designer” means the designer appointed under regulation 5(1)(a) to perform specified duties in regulations 11 and 12;

The definition of "Designer" remains unchanged from '07

Reg 5(1)
"Where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time, the client must appoint in writing—
a designer with control over the pre-construction phase as principal designer."

"Default" to the Client is surely only a legal technical mechanism to allow a presumption of blame, not an argument to refute the legal definitions and statutory requirements of defined duty holders?

Except that I have had professional legal opinion from two lawyers that say no - that is apparently a naive interpretation of the wording. They, plus an opinion taken from private correspondence with a senior person at HSE, say that the overarching duty of the PD to plan, manage, monitor and co-ordinate is set out in paragraph (1) of Regulation 11 and is qualified by the standard 'as far as is reasonably practicable'. The paragraphs 4 and 5 below, relate to paragraph (1) and are components of that general duty and are thus also qualified by as far as is reasonably practicable.



The PD has a duty to " identify and eliminate OR CONTROL ... foreseeable risks" (emphasis added). How does the PD control risks if he has no site management function?

The equivalent designer duty is to "control the risks through the subsequent design process", but the PD duty has no limitation to only the design process. Since the designer duty is so limited, the absence of the limitation from the PD implies this is actually a more extensive duty.

The ACOP makes it clear that designer duties don't extend to site management under CDM07, but there is no such statement in CDM15 or L153.



No. Reg 2 says PD must be a designer, it does not say must be a designer of this project. You could be a design organisation and provide PD duties on a project to which you have no other design input. Indeed, L153 implies acceptance of this - paragraph 96 states "Principal designers MAY have separate duties as designers" (emphasis added)

There are lots of 'project management' organsiations that are in control of construction work but don't do design. Does this requirement in the regs mean that contractual structures which do not have a single organisation in control (or in which the organisation in control is not a designer) are illegal?



It's not just 'must', it's "must ... so far as it is within the principal designer’s control". What's that? Is that a higher or lower standard the SFAIRP? Why have they adopted a third standard - neither absolute, not SFAIRP? That implies they think it means something different from either.

You also have to consider Regulation 5(1)(a) for the whole context of the PD appointment.
Otherwise, I go with Ray's summation.

Understood and agreed, achrn.

I'm also of the opinion that the Regs and Guidance are a mess. Once again, we're left hanging on the intended meaning.

First stated objective of CDM 2015 in Consultative Document CD261.

Shortening and structural simplification.........

This threads says it all really.

I agree it's going to increase massively. Actually, however, where I see the cost increase is not in the items you highlight.

Where I see cost is in reg 11 (3). The PD appears to be jointly liable with each designer for the design output from that designer, since the PD has a duty to do all that is reasonably practicable to identify and eliminate or control foreseeable risks in the design.

That is, the PD is going to need to be fully briefed on every detail of every designers output, because if there is any foreseeable risk in that output that the designer in question has overlooked, the PD is now liable for it. The PD is going to have to be represented in the internal design review meetings of every designer, I think. That or you're going to need specific design review meetings for the project where each designer sets out what they've done and the PD establishes that they are themselves satisfied that the designer has addressed every foreseeable risk.

Under CDM07 ACOP it was clear that the CDM-C does not approve or check designs. Under CDM07, I think the PD DOES need to approve and check the output of every designer, because the PD "must identify and eliminate or control, so far as is reasonably practicable, foreseeable risks to the health or safety of any person" across the whole pre-construction phase.

The industry guidance tends to confirm this - "You must ensure that the designers comply with their duties during the design stage" and "decide which elements of the design you wish to review in detail
as the design develops". It does admittedly say "You are not expected to review everything during design development", but I don't see how you can possibly "identify and eliminate or control, so far as is reasonably practicable, foreseeable risks to the health or safety of any person" unless you review everything so far as is reasonably practicable. Plus, that's just industry guidance anyway...

As this is related to this interesting topic, i thought i would add it to this thread rather than start a new one.

What are peoples thoughts on some clients who are saying, on existing projects they will replace the CDMC after the transitional period in October and simply tell/ appoint the Principal Contractor (PC) as PD because the job has been awarded on a design & build basis? What if the PC does not want to be the PD? It will upset the apple cart if the duties fall back to the client.

Also, for future/ post October D&B projects, will clients try to avoid appointing the PD until they have the PC appointed and then simply say - you will be the PD?

If the PC accepts the appointment, it's a sensible way forward (in my opinion) since ta D&B contractor already carries contractual liability for the design. The sticking point is only that you can't force any body to accept the appointment - so it will be a case of who blinks first - the PC saying "no I won't take the appointment" or the client saying "if you don't we'll pull the job".



Reg 5 requires "the [PD and PC] appointments must be made as soon as is practicable, and in any event, before the construction phase begins". However, by the time construction phase begins, there's been quite a lot of pre-construction phase (normally). A client may read this reg as meaning you don't really need either a PD or a PC until the construction phase starts, which defeats the intention of the PD, and is probably an implicit invitation for even later appointment of the PD than the industry has accepted for the CDM-C.

I can see a client trying to argue it's not practicable on a D&B until there is a PC on board, because until then there isn't a clear designer with control over the project. It's obviously not what the regs envision, but...

My view of what should happen on a D&B is that a designer working on the initial conceptual stages of a scheme before there is a PC should be PD, and once there is a PC, then the PC is PC and PD.