At my talk on 10th September one issue raised was whether the CDM co-ordinator appointment hinges on an ‘intention to build’ as signified by the starting of work on detailed design (Stage D). The CDM (2007) regulations state in Regulation 18 Additional Duties of designers:
14. —(1) Where a project is notifiable, the client shall appoint a person (“the CDM co-ordinator”) to perform the duties specified in regulations 20 and 21 as soon as is practicable after initial design work or other preparation for construction work has begun.
(2) After appointing a CDM co-ordinator under paragraph (1), the client shall appoint a person (“the principal contractor”) to perform the duties specified in regulations 22 to 24 as soon as is practicable after the client knows enough about the project to be able to select a suitable person for such appointment.”
This suggests to me that the appointment should be not later than after the beginning of Stage D. But it is interesting to see that in the Plan of Work 1998 (I haven’t seen the revised version at the time of writing) the role of the Planning Supervisor (i.e. predecessor to the CDM co-ordinator) begins in Stage A).
Important – note that under CDM Reg. 8(2) “where a project is notifiable, no designer shall commence work (other initial design work) in relation to the project unless a CDM co-ordinator has been appointed for the project.”
Lawyers will look at documents where the meanings of expressions are not clear. HSE guidance leaflet INDG 411 ‘Want construction work done safely?’ A quick guide for clients on the Construction (Design and Management) Regulations 2007 (free download from the HSE website) says: “You should appoint the CDM co-ordinator as soon as possible, but no later than the initial design/preparation stage” (paragraph 8). This is not law, nor does it have the status of an “Approved Code of Practice” but it could be influential. Incidentally, it also states: “CDM 2007 does not require the CDM co-ordinator to supervise or monitor work on site.”
What guidance is there on what the HSE means by ‘initial design work?’
The Approved Code of Practice is clearly much more influential ACOPs have a “special legal status. If you are prosecuted for breach of health and safety law, and it is proved that you did not follow the relevant provisions of the Code, you will need to show that you have complied with the law in some other way or a Court will find you at fault” (from the frontispiece to Managing Health and Safety in Construction – the document which contains the regulations and the ACOP). At Paragraph 66 this says:
“66 Early appointment is crucial for effective planning and establishing management arrangements from the start. The regulations require the appointment to take place as soon as is practicable after initial design work or other preparation for construction work has begun. This allows the client to appraise their project needs and objectives, including the business case and any possible constraints on developments to enable them to decide whether or note to proceed with the project before appointing the CDM co-ordinator. The CDM co-ordinator needs to be in a position to be able to co-ordinate design work and advise on suitability and compatibility of designs, and therefore they should be appointed before significant detailed design work begins. Significant detailed design work includes preparation of the initial concept design and implementation of any strategic brief. As a scheme moves into the detailed design stage, it becomes more difficult to make fundamental changes that eliminate hazards and reduce risks associated with early design decisions.”
The bold sentences suggest that the appointment should be at an earlier stage than Stage D. This makes clear how important the HSE regards it to consider health and safety at the early stages of the project. By complying with this the CDM co-ordinator would be in place to give advice and the benefit of the special skills he or she brings to the design even at the early stages. The ACOP shows how you can comply with the law but ‘you may use alternative methods to those set out in the Code or order to comply with the law’ (from the same frontispiece referred to above).
So, my interpretation (and we need a court’s interpretation to make any claim with authority – until then there remains doubt) is that it’s advisable to appoint the CDM co-ordinator earlier than Stage D, but that if you don’t you could, if the job is done properly, find the CDM co-ordinator requiring a review of decisions made earlier and the client and designer might have to face up to the possible reversal of strategic decisions and design choices which had been taken.
Commercially it makes more sense for the CDM co-ordinator input to happen during the very earliest stages and before the gathering of the client’s information and the appointment of the designer. Amongst things that the CDM co-ordinator, once appointed, should advise the employer on is the competence of the designers in health and safety terms. If the lead designer is also the CDM co-ordinator, many of these problems are resolved. All but the smallest practices might consider hiring sufficient expertise to enable them to fulfill the role.
Timing of prosecutions
Cases are most likely to arise looking back at the build-up to an accident or dangerous occurrence after the event. At this stage what would be most important is not the precise timing of the appointment of the CDM co-ordinator but whether health and safety was adequately considered, at all stages, and whether the designer and the CDM co-ordinator made sure that that reviews where taken at appropriate stages.
I haven’t found any reference to ‘intention to build’, but if a building never proceeded to construction, and no preliminary work was done (e.g. surveying or site preparation) it would be unlikely that the HSE would launch a prosecution. Intention is often considered in law but I suspect that the expression ‘intention to build’ was mentioned somewhere discussion and that it took on more weight than it warrants.