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RICS Building
Control JOURNAL
CDM Regulations
Changing liabilities
T
he Construction
(Design and
Management)
Regulations (CDM)
2015 will be an
important evolution in
enforcing standards
for the planning, design and delivery of
construction projects. Of even greater
significance are proposals to radically
alter the approach of the criminal courts
in sentencing offenders guilty of health
and safety breaches or, in the most
severe cases, corporate manslaughter.
Although comfort might be taken from
the protection of local authorities against
claims arising from building control and/or
contractual provisions excluding design
liability, surveyors should be aware of the
potential criminal liabilities that can result
from breach of wider health and safety
duties. Responsibilities under health and
safety legislation cannot be contracted
out of or insured against for reasons of
public policy. In addition, extreme cases
involving individual failures can also result
in imprisonment.
For these reasons, it is particularly
important to consider the possible
consequences of straying into the
territory of suggesting solutions to design
issues, including the nature and use of
materials.
It is necessary to have in mind CDM
provisions that define what a ‘designer’ is.
The definition is very wide and an
individual or organisation that acquires
designer status, perhaps inadvertently,
will be caught by the CDM duties
imposed on all designers – a breach of
which can result in enforcement action,
including criminal prosecution.
CDM revisions
The revised CDM regulations come into
force on 6 April and many of the
proposed changes have been well trailed
in the consultation process that
Tougher fines and sentencing for health and safety breaches are on
the way under regulations reforms, warns Sean Elson
concluded last June. A number of these
created significant debate, including the
extension of CDM to domestic clients (to
meet a requirement of the Temporary or
Mobile Construction Sites Directive) and
the CDM coordinator role.
The coordinator role was criticised by
contractors and clients alike as adding little
value and contributing to an overly
bureaucratic approach to compliance.
At the end of consultation period, the
proposal to scrap the role in favour of a
new principal designer to coordinate the
pre-construction phase of a project was
confirmed by the Health and Safety
Executive (HSE) despite objections from a
number of those currently acting in the role.
Due to the broad nature of the definition it
has been widely recognised that design
liability can be acquired in addition to that
of the original designer or design team.
This might occur through specifying the
use of certain materials or requiring
features to be added or removed.
Although the primary duty of the
new principal designer will be to plan,
manage, monitor and coordinate the
pre-construction phase, the
responsibilities of the designer will
remain essentially the same. This is to
try, when preparing or modifying a design
(so far as reasonably practicable), to
eliminate health and safety risks to any
person involved in the project’s
construction, its ongoing maintenance
or cleaning and its future use as a
workplace. It will be the duty of the
principal designer to ensure that the
designer meets those responsibilities.
Helpfully, the HSE draft guidance that
accompanies the regulations explicitly
states that local authority or ‘government’
officials giving advice and instruction on
meeting statutory requirements will not be
considered designers. However, statutory
bodies that require certain features to be
included or excluded going beyond what
the law (e.g. Building Regulations)
stipulates may become ‘designers’ and
must comply with CDM 2015.
Enforcement and sanctions
In practice, very few CDM clients or
designers have been the subject of
enforcement action or prosecution
relating to breaches of their duties; most
enforcement has been in relation to
contractors. Nevertheless, the HSE
continues to promote the client’s
important role in the commissioning and
design of projects. Time will tell whether
the new regulations will be accompanied
by a new enforcement approach that
looks beyond a principal contractor to
those engaged in the provision of
Ithasbeenwidely
recognisedthatdesign
liabilitycanbeacquired
inadditiontothatofthe
originaldesigneror
designteam
Other changes include enhanced
duties on the client. It had been
proposed by the HSE to withdraw the
CDM Approved Code of Practice, but
following the consultation it now plans
to issue a shorter version together with
additional guidance.
Importantly, what defines a designer
will remain essentially the same. It
includes any person (including a client,
contractor or other person referred to in
the regulations) “who in the course or
furtherance of a business prepares or
modifies a design relating to a structure
or to a product or mechanical or
electrical system”.

2. include periods of imprisonment. If
adopted, these will be a step change in
the courts’ attitude towards sentencing
health and safety cases.
Enforcement experience does not
suggest that the actual process of
building control carries with it a
substantial threat of health and safety
enforcement action, although it is more
than hypothetical – especially in cases
where solutions are actively suggested.
However, where risks need to be
reflected in processes for ensuring
the safety of employees on the ground,
the price for a failure of effective
management is likely to become much
greater in the coming years. b
More information
>
To download a free copy of The draft
guidance on the Construction (Design and
Management) Regulations 2015, visit
http://bit.ly/1C7uP7
isurv.com provides practical insight into all
construction regulations and how theory
is applied in practice
a p r i l / m ay 2 0 1 5 1 1
RICS Building
control JOURNAL
k The employer of a surveyor exposed to asbestos during an inspection faces a very
real risk of enforcement action
pre-construction information, adequate
mobilisation time and safe design.
One of the aims of the revised CDM
regulations will be to make the relevant
duties more easily understood and to
reduce the level of bureaucracy.
Experience suggests that where a duty
imposed on an individual or organisation
is subject to criminal sanctions, those
concerned will consider it necessary to
produce documentation as evidence that
they have met their obligations.
The duties under CDM should not be
seen in isolation. Work instructions and
design modifications might also be
caught by the overarching obligations of
the Health and Safety at Work etc. Act
1974 and other associated regulations.
The reformed law introduced by the
Corporate Manslaughter and Corporate
Homicide Act 2007 is also becoming
increasingly important. The past 12
months has seen a significant number
of prosecutions and convictions
The risks to surveyors and
organisations of facing possible
corporate manslaughter or health and
safety offences may be low in the context
of building control or wider design issues,
but this is not the case in respect of
wider safety management concerns.
Organisations or individuals placing
surveyors onto sites or within buildings
must ensure that appropriate risk
assessments have been undertaken and
that training has been provided. Obvious
examples might include buildings that
suffer from some form of instability or
are potentially contaminated with
asbestos or other hazardous materials.
For example, the employer of a
surveyor exposed to asbestos during an
inspection faces a very real risk of
enforcement action. Asbestos remains a
high priority for the HSE and a variety of
public sector employers such as NHS
Trusts and local authorities have been
prosecuted in relation to a failure to
prevent exposure. As a minimum, an
employer should:
bb understand the nature of the
environment into which employees
will be placed
bb ensure that adequate risk
assessments have been undertaken
bb ensure adequate training has
been provided (in particular, asbestos
awareness training may be highly
relevant in refurbishment projects).
Penalties under the criminal law for being
in breach of health and safety duties are
likely to increase substantially if new
guidelines proposed by the Sentencing
Council in November 2014 come into
force. These closely mirror guidelines
recently introduced in relation to
environmental offences.
The guidelines propose fines that relate
to an organisation’s turnover and the level
of harm involved in the alleged breach,
as follows:
bb micro organisation: not more
than £2m
bb small organisation: between
£2m-£10m
bb medium organisation: between
£10m-£50m
bb large organisation: £50m or over.
In the worst cases of health and safety
failings, the proposed fines for a large
organisation would be in a range of
£2.6m-£10m (and possibly much higher)
for a breach of legislation and between
£4.8m-£20m in cases of corporate
manslaughter. The guidelines also set out
appropriate sentences for those people
convicted of individual breaches and
Related competencies include
Legal/regulatory compliance
Sean Elson is Senior Associate at
Pinsent Masons
sean.elson@pinsentmasons.com
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