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Introduction to the Construction, Design and Management Regulations

The current design and management regulations are set out in the Constructions (Design and Management) Regulations 2015 (“CDM 2015”). These regulations have an impact on pretty much everyone involved in construction, development and redevelopment work in Great Britain. Even small and domestic projects are covered. The regulations place various duties and obligations on different parties within the construction project. An outline of the main features are as follows:

The client’s duties

The client has a legal obligation to make sure that there are suitable arrangements for the management of a project without there being risks to health and safety. In particular, the client must make sure that:

(a) Pre-construction information is provided to contractors and designers;

(b) That the principal contractor prepares a construction phase plan before the works begin;

(c) That the principal designer prepares a health and safety file.

The client must then make reasonable steps to ensure that the principal contractor and designer comply with their duties. The client also has an obligation to notify the Health & Safety Executive of the project if the work is scheduled to last longer than 30 days and have more than 20 workers on site, or if the construction work is scheduled to exceed 500 person days.

The designer’s key duties

The term “designer” is interpreted widely to include not just people who prepare or modify designs and drawings but also people who prepare specifications and bills of quantities so, for example, quantity surveyors could come within this definition.

The designers are under obligation not to start work until they are satisfied that the client understands their own duties.

The principal designer has an extra obligation to manage and monitor the pre-construction phase for the purpose of safeguarding against risks to health and safety. In practice, this means that the designs must be such that work can commence and continue safely.

Duties of a principal contractor

A principal contractor must plan, manage and monitor the construction phase and in particular, co-ordinate matters relating to health and safety during construction.

The principal contractor co-ordinates the various contractors and sub-contractors. They must provide site induction, secure the site against unauthorised access and ensure minimum welfare requirements for those working on the site.

The principal contractor creates and maintains the construction phase plan and they have to consult and engage with workers and other contractors.

Duties of the contractor

This includes not just sub-contractors but also main contractors, management contractors and construction managers and sometimes even the client.

All contractors have the obligation to plan, manage and monitor their construction work to ensure health and safety. In practice, this means that every contractor must be responsible for the people that they employ or engage. They must ensure that those people have the appropriate skills, knowledge and training. Each contractor must then supervise and properly instruct and manage those people.

The contractor is not allowed to start work on site until it is satisfied that the site is secured against unauthorised access and welfare requirements have been met for those working on site.

Key documents under the CDM 2015

The Construction Phase Plan is prepared by the principal contractor with input from the principal designer and others. The Construction Phase Plan must be in place before the construction site is set up. Site rules must be set. The Construction Phase Plan must be continually reviewed by the principal contractor throughout the project.

The Health & Safety Plan is prepared by the principal designer, the health and safety file is compiled and added to as the project proceeds. Ultimately, this document will be handed to the client at the end of the project.

The health and safety file would be begun in the pre-construction phase and will be kept up-to-date as the project progresses.

General duties that applies to everyone on site

Whatever their role or position in relation to a construction project, everyone involved has the following general duties:

(a) They must have the competence and capability to perform the role they are required to do whilst maintaining health and safety;

(b) Everyone has a duty to co-operate with everybody else to ensure that everyone can comply with their duties under the CDM regulations.

(c) Anything likely to endanger health and safety must be reported.

(d) Information must be provided properly and promptly when there is a requirement to provide it.

Site welfare requirements

The basic welfare requirements on a site are:

(a) Toilets;

(b) Washing facilities

(c) Drinking water

(d) Changing rooms

(e) Rest facilities
Case Study : Public Inquiry on Change of Entity
Case Study : Operator Survives with Warning

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Transport Law
We were approached by an operator who had received public inquiry paper several weeks earlier. The Operator instructed us to represent him at his inquiry listed for a hearing before the Traffic Commissioner’s (TC) only two weeks in advance.

There were several serious issues that the TC indicated he wanted to examine at the hearing and was threatening regulatory action against the Operator Company. The Operator had approached another firm of solicitors, who informed him that the likely outcome of the hearing would be loss of repute and licence revocation.

We provided the Operator with advice about immediate steps to be taken in preparation for the hearing. We requested the operator send us a number of documents critical to the success of his inquiry. A consideration of those document showed significant—but not insurmountable—shortfalls in maintenance standards and legal requirements.

The operator had recently appointed a new Transport Manager (TM) with an excellent reputation in his field. The TM worked along with us in analysing the Company’s compliance systems to create better compliance systems and improve the of the Company’s mindset about such.

We prepared extensive written representations and sent these to the TC in advance of the hearing along with supporting documentation.

We recommended that both the Operator (Director) and his Transport Manager attend the hearing. As expected the TC questioned the Operator and TM extensively about the various issued raised. We guided and advised the Operator and TM throughout the hearing. Following our final submissions, the TC decided not to revoke the licence or disqualify the Operator Company. The Operator was issued with a warning and a very short suspension of one vehicle until it had a further maintenance inspection and remedial work done. The Operator was allowed to keep the rest of his fleet working with minimal disruption to the business. The Operator was thrilled with our services and has since instructed us at least one other transport matter.
Transport Law
We recently represented two companies who were both called to the same public inquiry. Although separate entities, the companies were closely connected because of having the same set of directors. One of the companies (the Operator) had years previously been issued with a restricted goods vehicle operator’s licence. The other company had recently applied for the same kind of licence (the Applicant).

Over the previous year, the directors had decided to progressively move most of the Operator’s business interests to its sister company the Applicant. Without understanding the potential consequences, and before being granted its operator’s licence, the Applicant began using the Operator’s heavy goods vehicle. The Operator company had not informed the Traffic Commissioner (TC) of its change in business arrangements and of the apparent change of entity (though the companies were actually wholly owned subsidiaries of another company – see below).

The Public Inquiry was convened because of changes at this business group and a fundamental misunderstanding of the operator’s licence regime, and that there had been what appeared to be a change of entity involving the companies.

The TC needed to be satisfied as to whether the companies were not unfit to hold an operator’s licence due to relevant activities and convictions, and about the events relating to a change in the circumstances of the licence holder. The Operator risked revocation of its licence. The Applicant was at risk of not having its licence granted.

In advance of the inquiry, and to start building their case, we obtained as much information as we could about the businesses and provided each company comprehensive legal advice. We examined the companies’ compliance systems and made recommendations about immediate and longer-term changes that needed to be implemented. On our recommendations, the companies invested time and resources into their maintenance and other systems

As a result of our preliminary work and advice, the companies were fully prepared for the public inquiry hearing. In particular, to answer questions and provide evidence about the apparent change of entity.

At the hearing we demonstrated that the companies were running professional and competent businesses. With specific reference to the issue of the apparent change of entity, the TC accepted that Section 3(4) of the Goods vehicle (licencing of operators) Act 1995 was relevant and that this was not a typical “change of entity” case – because of the companies being subsidiaries. We were able to persuade the TC that the issues that lead to the inquiry arose out of ignorance rather than an attempt to mislead or gain financial advantage

The TC granted the new licence to the Applicant with the Operator company voluntarily surrendering its licence. The directors were delighted with the outcome of the public inquiry hearing and that they managed to avoid the damaging consequences they feared.
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We were approached by a small business owner to represent them at the a public inquiry which had been called to consider their application for a new passenger vehicle operator’s licence.

The person applying for the licence had a long background of work in the transport industry as a driver but had never before operated his own transport business. One of the key issues was that the nominated transport manager was also nominated some other licences and the Traffic Commissioner was concerned whether this meant that the transport manager would be able to properly carry out their duties on so many licences at once.