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winitbc  
#1 Posted : 18 February 2021 08:29:27(UTC)
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winitbc

Can a enforing officer use the Construction (HSW) Regs 1996 as a reference in a NoC letter?

Brian Hagyard  
#2 Posted : 18 February 2021 08:39:36(UTC)
Rank: Super forum user
Brian Hagyard

yes

thanks 1 user thanked Brian Hagyard for this useful post.
winitbc on 18/02/2021(UTC)
winitbc  
#3 Posted : 18 February 2021 08:44:06(UTC)
Rank: New forum user
winitbc

Originally Posted by: Brian Hagyard Go to Quoted Post

yes

Can a regulation withing superseded Regs be an actual 'material breach'?

Roundtuit  
#4 Posted : 18 February 2021 09:00:58(UTC)
Rank: Super forum user
Roundtuit

That depends upon what change the new regulations made - quite ofetn it is a modification of words within a regulation rather than a full revocation

thanks 2 users thanked Roundtuit for this useful post.
winitbc on 18/02/2021(UTC), winitbc on 18/02/2021(UTC)
Roundtuit  
#5 Posted : 18 February 2021 09:00:58(UTC)
Rank: Super forum user
Roundtuit

That depends upon what change the new regulations made - quite ofetn it is a modification of words within a regulation rather than a full revocation

thanks 2 users thanked Roundtuit for this useful post.
winitbc on 18/02/2021(UTC), winitbc on 18/02/2021(UTC)
Brian Hagyard  
#6 Posted : 18 February 2021 10:30:58(UTC)
Rank: Super forum user
Brian Hagyard

Your right the The Construction (Design and Management) Regulations 2007 appear to have repealed the welfare regulations completley. I dont think that will affect the FFI validity (without reading its difficult to say). Remember if an inspector feels they need to write to you then thats what makes it a metrial breach, so if they felt your welfare facilities were below standard that why you got the FFI. Refrancing the old regs is just sloppy.

Roundtuit  
#7 Posted : 18 February 2021 11:02:06(UTC)
Rank: Super forum user
Roundtuit

The Construction (Design and Management) Regulations 2015: 38.—(1) The 2007 Regulations are revoked.

The 1996 regulations are still listed in HSG150  but then the available document is a third edition from 2006 so still discusses CDM 1994.

Roundtuit  
#8 Posted : 18 February 2021 11:02:06(UTC)
Rank: Super forum user
Roundtuit

The Construction (Design and Management) Regulations 2015: 38.—(1) The 2007 Regulations are revoked.

The 1996 regulations are still listed in HSG150  but then the available document is a third edition from 2006 so still discusses CDM 1994.

winitbc  
#9 Posted : 18 February 2021 11:19:08(UTC)
Rank: New forum user
winitbc

Originally Posted by: Brian Hagyard Go to Quoted Post

Your right the The Construction (Design and Management) Regulations 2007 appear to have repealed the welfare regulations completley. I dont think that will affect the FFI validity (without reading its difficult to say). Remember if an inspector feels they need to write to you then thats what makes it a metrial breach, so if they felt your welfare facilities were below standard that why you got the FFI. Refrancing the old regs is just sloppy.

The inspector is quoting Reg 25 of  RRFSO as a material breach too (ref HSE47) - Ultra Vires - comes to mind, im just putting together an appeal on behalf of my MD for a FFI, thanks for everybodies help

peter gotch  
#10 Posted : 18 February 2021 13:39:39(UTC)
Rank: Super forum user
peter gotch

Winitb, be careful about going down the ultra vires route.

HSE is the enforcing authority for construction sites as regards RRFSO as amended.

Enforcing authorities

25.— [F1(1)]  For the purposes of this Order, “enforcing authority” means—

(a)the fire and rescue authority for the area in which premises are, or are to be, situated, in any case not falling within any of sub-paragraphs (b) to (e);

(b)the Health and Safety Executive in relation to—

F2(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii)a ship, including a ship belonging to Her Majesty which forms part of Her Majesty's Navy, which is in the course of construction, reconstruction or conversion or repair by persons who include persons other than the master and crew of the ship;

[F3(iv)any workplace which is, or is on, a construction site, other than one in relation to which the Office for Nuclear Regulation is responsible for health and safety enforcement;]

[F4(bb)the Office for Nuclear Regulation in relation to—

(i)any premises for which a licence is required by virtue of section 1 of the Nuclear Installations Act 1965 or for which a permit is required by virtue of section 2 of that Act;

(ii)any premises for which such a licence or permit would be required but for the fact that the premises are used by, or on behalf of, the Crown;

(iii)any workplace which is, or is on, a construction site in relation to which the Office for Nuclear Regulation is responsible for health and safety enforcement;]

(c)the fire service maintained by the Secretary of State for Defence in relation to—

(i)premises, other than premises falling within paragraph (b)(iii), occupied solely for the purposes of the armed forces of the Crown;

(ii)premises occupied solely by any visiting force or an international headquarters or defence organisation designated for the purposes of the International Headquarters and Defence Organisations Act 1964 F5;

(iii)premises, other than premises falling within paragraph (b)(iii), which are situated within premises occupied solely for the purposes of the armed forces of the Crown but which are not themselves so occupied;

(d)the relevant local authority in relation to premises which consist of—

(i)a sports ground designated as requiring a safety certificate under section 1 of the Safety of Sports Grounds Act 1975 F6 (safety certificates for large sports stadia);

(ii)a regulated stand within the meaning of section 26(5) of the Fire Safety and Safety of Places of Sport Act 1987 F7 (safety certificates for stands at sports grounds);

(e)a fire inspector, or any person authorised by the Secretary of State to act for the purposes of this Order, in relation to—

(i)premises owned or occupied by the Crown, other than premises falling within paragraph [F8(bb)(ii)] and (c));

(ii)premises in relation to which the United Kingdom Atomic Energy Authority is the responsible person, other than premises falling within paragraph [F9(bb)(ii)] ).

[F10(iii)a prison within the meaning of the Prison Act 1952;

(iv)custodial premises provided under section 43 of the Prison Act 1952 (places for the detention of young offenders etc.);

(v)premises which are for the time being approved under section 13(1) of the Offender Management Act 2007 (approved premises);

(vi)accommodation provided by a court and used for the detention of persons who have been sentenced to imprisonment or detention or remanded in custody;

(vii)a removal centre, pre-departure accommodation or short-term holding facility within the meaning of section 147 of the Immigration and Asylum Act 1999 (interpretation of Part VIII);

(viii)a customs office designated under section 35(1) of the Police and Criminal Evidence Act 1984 as applied and modified by articles 12 (application of the Police and Criminal Evidence Act 1984) and 22 (modification of section 35 of the Act (designated police stations)) of the Police and Criminal Evidence Act (Application to immigration officers and designated customs officials in England and Wales) Order 2013;

(ix)an office of Revenue and Customs designated under section 35(1) of the Police and Criminal Evidence Act 1984 as applied and modified by articles 3 (application) and 10 (modification of section 35 of the Act (designated police stations)) of the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015.]

[F11(2) For the purposes of paragraph (1)—

(a)“construction site” means a construction site, as defined in regulation 2(1) of the Construction (Design and Management) Regulations [F122015], to which those Regulations apply, other than one to which regulation [F1236] of those Regulations applies;

(b)the Office for Nuclear Regulation is responsible for health and safety enforcement in relation to a construction site if, by virtue of regulations under section 18(2) of the Health and Safety at Work etc. Act 1974 (enforcement), it is responsible for the enforcement of any of the relevant statutory provisions (within the meaning of Part 1 of that Act) in relation to the site.]

As regards quoting the Construction (HSW) Regs 1996, HSE could simply reissue the notice of FFI quoting the equivalent part of CDM 2015, though you would have a very good case for appeal against the size of the FFI if they attempted to charge for extra time spent on remedying a blunder in the original notice.

So, you might want to take the diplomatic route of politely asking whether the Inspector knew what law they were referring to if they have quoted a revoked code of regulations.

But your appeal should probably mostly be decided on the facts and the evidence collected by HSE. If this Inspector is quoting regulations that were revoked 13 years ago, then may be they don't have sufficient evidence to support a notice of FFI.

In theory if HSE takes enforcement and it results in unjustified costs to your business, you could sue HSE.

I once had a wise Principal Inspector in HSE whose advice to me was that if I was unsure of my grounds, then the route forward would be via prosecution rather than Improvement Notice or Prohibition Notice. Arguably the same principle might apply to a notice of FFI.

Any costs against HSE in relation to an unsuccessful prosecution would be likely to be small compared with downtime etc associated with an inappropriate Notice.

Good luck, Peter

thanks 1 user thanked peter gotch for this useful post.
winitbc on 18/02/2021(UTC)
Brian Hagyard  
#11 Posted : 18 February 2021 15:28:45(UTC)
Rank: Super forum user
Brian Hagyard

Originally Posted by: Roundtuit Go to Quoted Post

The Construction (Design and Management) Regulations 2015: 38.—(1) The 2007 Regulations are revoked.

The 1996 regulations are still listed in HSG150  but then the available document is a third edition from 2006 so still discusses CDM 1994.

So the regulations that revocked the regulations have now been revoked - this does not mean the 1996 regulations are any less dead - Welfare is now covered in The Construction (Design and Management) Regulations 2015.

Still the basis of the FFI may still apply - i would not try to appeal just on the basis of the regulation quoted if the facts are still correct under CDM.

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