Presentation slides from the BIFM Corporate Members Event on 26 June at Ricoh UK in London. This presentation covers insight and challenges that come with changes in legislation. Key topics included are: CDM CDM (Construction Design and Management) Regulations 2015, the new COMAH regulations, and ESOS (Energy Savings Opportunity Scheme.)

1. BIFM Corporate
Members Event
June 2015
Lee Grant
Head of Service &
Community Development,
BIFM
#BIFMCME

2. Agenda
Corporate Members Event:
Legislation Impacting Facilities Management
 Barbour - Teresa Higgins, Sales Director, Barbour EHS
> CDM - Jason Bleasdale, Partner in the Casualty and
Healthcare Group, Clyde & Co. & Rhian Gilligan, Legal
Director, Safety Health and Environment Regulatory, Clyde
& Co.
> CDM case study - Ophelia Bellio, Facilities Manager –
Facilities & Property, Ricoh UK Ltd
> ESOS - Jason Bleasdale, Partner in the Casualty and
Healthcare Group, Clyde & Co.
> COMAH - Rhian Gilligan, Legal Director, Safety Health and
Environment Regulatory, Clyde & Co.

3. Teresa Higgins
Sales Director,
Barbour EHS
teresa.higgins@ubm.com
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21. Jason Bleasdale &
Rhian Gilligan
Clyde & Co.
#BIFMCME

22. CDM Regulations 2015
Jason Bleasdale, Partner
Rhian Gilligan, Legal Director
Clyde & Co Claims LLP

23. CDM REGULATIONS 2015 – MORE
RELEVANT AND FOCUSED OR
JUST MORE RED TAPE?

24. Timeline to 2015
 1992 – EU Directive 92/57/EEC
 1994 – CONDAM Regulations
 2000/01 – 105 deaths
 2007 – new CDM Regulations
 2010/12 – evaluation of CDM 2010
- “Common Sense, Common Safety” – Lord Young, 2010
- “Good Health and Safety, Good for Everyone” – Govt.
2011
- “Reclaiming Health and Safety for All” – Prof. Lofstedt,
2011
 2014 – consultation on replacing CDM 2007
 2015 – new Regulations enacted

25. So why change CDM 2007?
 Legal – non-compliance with EU Directive 92/57/EEC(!)
- EU Directive covers domestic clients; CDM 2007 did not
- EU Directive requires coordination, where more than one
contractor; CDM 2007 based this requirement on project duration
 Practical – not well suited to SMEs and smaller construction sites
- too complex and bureaucratic (still …)? leading to
- Mis-application or over-interpretation (adding further bureaucracy)
- “Competence” not well understood (especially in the corporate sense)
- “Core competence” assessment too burdensome
o Driven by process, not output
o Often bought in from 3rd party providers
- Coordination role not properly embedded in preconstruction phase

26. Objectives and solutions
From a legal perspective, the intention is to seek compliance with EU
Directive 92/57/EEC (finally …)
From a practical perspective, the intention is to make a simpler, more
streamlined and more proportionate system
 Fewer HSE notifications
 Coordination by principal designer
 Standalone “competence” to be replaced by project specific:
- Skills
- Knowledge
- Experience
- Organisational capability

27. CDM 2015 - Application
 CDM 2015 applies to all construction work in Great Britain
 There is almost no exclusion for domestic or small projects
 However, there is a distinction made between those projects which are
notifiable to the HSE and those with one contractor or multiple
contractors
 A project is notifiable where:
- Construction work is scheduled to last longer than 30 working days
and have more than 20 workers on site working simultaneously at
any point, or
- Construction work is scheduled to exceed 500 person days
 CDM 2015 applies throughout a project: the client has duties before,
during and after construction

28. CDM 2015: the end of CDMC
 Client (Regs 4-7)
 Principal designer (Regs 8-12)
 Principal contractor (Regs 8 + 12-15)
 Designer (Regs 8-10)
 Contractor (Regs 8 + 15)

29. Competence assessment
 Competence was poorly understood
 Often the foundation of prosecutions following
accidents with Defendants unsure as to how they
would prove competence
 Now a more prescriptive approach
 Aim is to make competence assessment easier
 Elements of “competence” identified:
- Skills
- Knowledge
- Experience
- Organisational capability
 Person responsible for appointing a designer or
contractor must take reasonable steps

30. Competence assessment (contd.)
 Organisation capability is the policies and systems that an
organisation has in place to set acceptable health and safety
standards and the resources and people to ensure the standards
are delivered
 ‘Sensible enquiries’ (para 60, HSE guidance) should be made –
PAS91 sets out standardised pre-qualification questions which is
one way of assessing organisational capability
 ‘Due weight’ should be given to membership of professional
institutional body (para 62, HSE guidance)

31. Transitional provisions
 Until 6 April 2015, CDM 2007 remains in force, so all projects will need to
apply to CDM Co-ordinator
 After 6 April 2015, CDM 2015 came into force and CDM 2007 was
withdrawn
 Between 6 April 2015 and 6 October 2015, transitional arrangements
apply
 Two scenarios:
- Projects with no existing CDMC or PC
- Projects with an existing CDMC

32. It starts now – transitional provisions
 Projects with a CDM Co-ordinator
- CDM Co-ordinator may remain in role until 6 October 2015
- During that period, he must discharge the obligations set out in
para 5 of Schedule 4
- If the project is incomplete as at 6 October either:
o A principal designer should be appointed; or
o A principal contractor may complete the H&S file

33. It starts now – transitional provisions
 Projects under construction with no CDM Co-ordinator
- A principal designer must be appointed as soon as possible
- A principal contractor must also be appointed
- If principal contractor is appointed but no principal designer, the
principal contractor must prepare/complete the H&S file

34. Enforcement issues
 Clarity and understanding regarding roles and responsibilities by all
parties involved
 Will take time for inspectors to implement CDM 2015 in practice
 Watch out for FFI invoices and Notifications of Contravention in the
meantime – is the time spent reasonable? Are the material
breaches correct?
 Check carefully any Prohibition or Improvement Notices – are they
correct?
 Competence still likely to be a battleground but CDM 2015
provides guidelines to help the industry
 Likely that HSE will still default to general duties with prosecutions
citing CDM breaches as particulars

35. What happens when it goes wrong?
 Statutory Notices
 Criminal investigation and prosecution
 Companies and individuals
 Unlimited fine and/or 2 years’ custody
 Director disqualification up to 15 years

36. Sentencing
 Health and Safety Offences Act
 Removal of cap in the Magistrates’ Court (post 12 March 2015)
 New sentencing guidance in 2016
 Increase in fines inevitable
 More trials?
 More Newton hearings?

37. CDM 2015 - conclusion
 Clearer and simpler?
 More streamlined and less bureaucratic?
 Cheaper to implement?
 Likely to improve safety on smaller sites?

38. Points of contact
Rhian Gilligan, Legal Director
Safety, Health, and Environment
Regulatory Department
Direct Tel. 0161 240 2580
Mobile. 07920 218071
Rhian.gilligan@clydeco.com
Jason Bleasdale, Partner
Casualty and Healthcare Department
Direct Tel. 0161 240 2881
Mobile. 07701 283747
Jason.bleasdale@clydeco.com

39. Ophelia Bellio
Facilities Manager –
Facilities & Property, Ricoh UK Ltd
#BIFMCME

40. Jason Bleasdale
Partner in the Casualty
and Healthcare Group, Clyde & Co.
#BIFMCME

41. ESOS – AN OPPORTUNITY OR A
COMPLEX BURDEN?
Jason Bleasdale, Partner
Clyde & Co Claims LLP

42. Background
Energy Savings Opportunity Scheme (ESOS)
 This new legislation has been implemented so that the UK can
comply with Article 8(4) of the European Energy Efficiency
Directive
 Energy efficiency audits will be required by all large undertakings
in the UK
 It is estimated that this will cover in excess of 10,000 such
organisations
 Deadline for energy efficiency audits to be submitted: 5 December
2015

43. Timeline
 31/12/14 – Qualification Date (no need to report this)
 05/12/15 – Compliance Date (this needs to be reported)
 Process is to be repeated every 4 years

44. Qualification: ‘large undertakings’
 At least 250 employees (anyone with a contract of employment
regardless as to whether or not they are part time or full time)
 Annual turnover over €50m and an annual balance sheet total of
€43m
 The trade or business of the organisation is irrelevant provided the
criteria of an undertaking (Section 1161(1) of the Companies Act)
2006
 Comprises part of a corporate group (with this including a UK
undertaking which meets the above criteria)
 Any entity which is subject to the Public Contracting Regulations is
excluded from ESOS

45. Qualification – further considerations
 Details are assessed on the basis of the last accounts prior to 31
December 2014 (as submitted to Companies House)
 If there are changes after the qualification date then these are not
material
 If an organisation is sold by a qualifying organisation through the
period 31 December 2014 to 5 December 2015 then there is a
need to comply with ESOS
 There is no need for audit of any assets and supplies sold or
acquired during the period 31 December 2014 to 5 December 2015

46. Keys steps
1 Conduct an ESOS assessment
2 Conduct energy audits
3 Identify energy saving opportunities
4 Utilise a lead assessor to cover off items 1-3 above
5 If the large undertaking/company is fully covered by ISO50001 then there is
no need for the assessment and audit process to be followed and the
certification alone will suffice
6 In the normal course, obtain sign-off from a single Director
7 Thereafter, ensure notification of the scheme administrator of ESOS to
prove compliance

47. ESOS assessment
 Any existence of ISO 50001 certification? If not, then proceed as
follows:
- Calculate the total UK energy consumption. This calculation is
relevant to assets, transport and organisations which the UK group
undertaking(s) held responsibility for between 31 December 2014
and still own on 5 December 2015. Unless the supplies are to
disaggregated subsidiaries (see below)
- Identify the 90% of total energy consumption (‘Areas of Significant
Energy Consumption’). There is some flexibility in relation to this.
N.B.: utilise any coverage by ISO 50001, Green Deal, DECs and/or
existing audits which meet the ESOS criteria. In addition,
unconsumed supplier rule – where not used and yet it can be
measured or reasonably estimated/calculated

48. ESOS audit
 Establish which audits need to be undertaken prior to 5
December
 Requirements to produce a compliant audit are as
follows:
- Use 12 months’ verifiable data (audit can have been
done any time between 6 December 2011 and the
notification date provided it meets ESOS
requirements)
- Obtain an analysis of the energy consumption and
energy efficiency (utilising 12 months’ data to
calculate, but this data must be post 31 December
2013)
- Pinpoint practical ways to improve energy efficiency
- Lead assessor determines any necessary site visits
- Recommend cost effective ‘Energy Saving
Opportunities’
- Pinpoint relevant estimated costs and benefits of the
‘Energy Saving Opportunities’ recommended

49. ESOS lead assessors
Criteria:
 Can be internal or external
 Belonging to an ‘approved register’
 Required to sign off the work himself/herself but
can use analysis from others
 Where there is an external lead assessor then
there is only a need for ESOS sign off by one
Director
 Where there is an internal lead assessor then there
is a requirement for sign off by two Directors
 The Directors simply confirm that they have
reviewed the findings. There is no specific form for
this sign off to take

50. Sign off and record keeping
 Notification is done online to the EA
 No need to submit energy data or the improvements
previously identified: simple organisation factual details will
suffice
 Absolute requirement for such notification to be submitted
by 5 December 2015
 Evidence pack needs to record compliance in line with the
following
- Identified cost effective Energy Savings Opportunities
- Details of both the ESOS assessment and also the audit
(where applicable)
- Identification of any non-compliant areas and equally
certification for alternative compliance routes
- Confirmation and a formal record of the sign off by the
lead assessor

51. Compliance and enforcement
 Compliance Notice
 Enforcement Notice
 Penalty Notice
- Civil penalties are triggered for failure to notify, failure
to maintain records, failure to undertake an energy
audit, failure to comply with a Compliance Notice, an
Enforcement Notice or a Penalty Notice and for
making a false or misleading statement
 Any appeal must be specifically based upon an error of
fact, error in law or unreasonableness

52. Points of contact
Jason Bleasdale, Partner
Casualty and Healthcare
Department
Direct Tel. 0161 240 2881
Mobile. 07701 283747
Jason.bleasdale@clydeco.com

53. Rhian Gilligan
Legal Director,
Safety Health and Environment Regulatory,
Clyde & Co.
#BIFMCME

54. CONTROL OF MAJOR ACCIDENT HAZARDS
REGULATIONS 2015 (“COMAH”)
Rhian Gilligan, Legal Director
Clyde & Co Claims LLP

55. The history
 SEVESO 1976
 EU directives
 Transposition into UK law via COMAH

56. Who does COMAH apply to?
 Manufacture, store, use “dangerous substances” in bulk quantities
 “Dangerous substance” – schedule 1
 Nature & quantity of substances
 “Upper tier” and “lower tier” sites

57. Why the change?
 Alignment with CLP
 Buncefield disaster December 2005
 BMIIB findings

58. Who is the regulator?
The Competent Authority:-
 Health and Safety Executive
 Environment Agency
 Natural Resources Wales
 Office for Nuclear Regulation

59. The role of the competent authority
 Information dissemination
 Examination of safety reports
 Identification of “domino sites”
 Plan for inspection
 Enforcement

60. What do ALL COMAH sites have to do?
 Take all measures necessary to prevent MAH
 Limit the consequences of a MAH
 Notify & liaise with CA
 Prepare, submit & implement MAPP (& revise as appropriate)

61. What are the extra requirements for an
upper tier site?
 Submit safety report containing specified information to CA
 Prepare, review & test emergency plan
 Put the plan into effect in the event of an emergency
 Provide information to those in the area of the site

62. What about the local authority?
 Prepare, review & test external emergency plans for upper tier sites
 Put the plan into effect in the event of an emergency
 Take certain steps if a major accident occurs

63. Summary of key changes
 Changes in tier
 Changes in classification
 Safety reports to be reviewed & amended to reflect CLP changes
 Disclosure of safety reports – case by case basis
 Update notifications
 Emergency plans

64. Point of contact
Rhian Gilligan, Legal Director
Safety, Health, and Environment
Regulatory Department
Direct Tel. 0161 240 2580
Mobile. 07920 218071
Rhian.gilligan@clydeco.com

65. Thank you
Enjoy the networking!
#BIFMCME