While the Principal Designer role was designed to be practicable, its duties are still enshrined in law, explains CPD provider Andrew Butler QC.
Architects looking at CDM 2015 regulations, perhaps with the intention of offering Principal Designer services, will be struck by the theme of ‘reasonable practicability’ that runs through them, making it easy to forget that CDM duties are ultimately subject to criminal law.
Official guidance from the Health and Safety Executive (HSE) advocates a ‘low key’ approach for smaller low-risk projects and ‘a more rigorous approach’ for more complex projects, while all actions need only be ‘in proportion’ to potential risks.
This level of flexibility in CDM legislation is meant to make it user-friendly, but from a lawyer’s perspective this opens the door to interpretation, particularly as there is a general absence of case law that has tested the 2015 regulations.
The ‘RIBA CDM 2015: Legal Practicalities’ CPD course offered by Andrew Butler and Robert Bowker from Tanfield Chambers return to the 2015 regulations themselves, rather than the innumerable guidance notes from third parties, to explain the duties of the various CDM cast members, including the duties of any designer and in particular the key role played by the Principal Designer.
‘There is so much unofficial guidance out there. Architects will find it useful if they go back to the source material, where they will see that above all, the regulations are meant to be practical, not onerous,’ says Butler.
He accepts that the lack of any rush to the courts over CDM failures of duty since the introduction of the new regulations suggests that the HSE has got the balance right between prescription and practicality.
Key to CDM 2015 is the central role played by the Principal Designer, who has to be appointed by the client on any project with more than one contractor. On projects for domestic clients, the Principal Designer does not have to be appointed, but the lead designer must still carry out the Principal Designer duties. The RIBA recommends members discuss with domestic clients the Principal Designer duties as a mandatory part of their scope of architectural services. Most importantly, says Butler, architects must satisfy themselves that the client knows what they are doing.
One of the main drivers behind the CDM revisions was the HSE’s desire to see the Principal Designer drawn from the design team, replacing the old CDM Co-ordinator who was frequently a third-party consultant with no influence on design decisions and their implications for health and safety.
The Principal Designer (PD) duties include planning, managing and monitoring the pre-construction phase. There is an obligation for the client to provide Pre-Construction Information (PCI), and an obligation for the PD to assist the client in providing PCI and assess its adequacy.
The PD is also under an obligation to share PCI, as far as it is within the PD’s control, with every other designer and contractor appointed or being considered for appointment.
Essentially, the PD is responsible for the management and co-ordination of health and safety considerations and the sharing of this information wherever design work is being undertaken – in this sense it is a supervisory role over designers, ensuring co-operation.
For the duration of the PD appointment, the PD has a duty to liaise with the Principal Contractor, sharing information relevant to the planning, management and monitoring of the construction phase.
The PD is expected to work within the ‘general principles of prevention’, but in proportion to the project – the legal principle of ‘so far as reasonably practicable’.
Documentation will carry the day, should legal action ever follow. Butler says the PD must be in a position after the event to demonstrate why choices were made and why they were a reasonable course of action.
The RIBA CDM 2015: Legal Practicalities is given as an interactive one-day course, or as a half-day course that focusses solely on domestic projects. Further information, including forthcoming dates and venues, is available at RIBA CDM 2015: Legal Practicalities and booking is open.
Architects will also be able to see a presentation by Paul Bussey, author of ‘CDM 2015: A Practical Guide for Architects and Designers’, at Guerrilla Tactics CPD day in November.
Thanks to Andrew Butler, Head of Chambers’ Business & Commercial Group, Tanfield Chambers.
Text by Neal Morris. This is a Professional Feature edited by the RIBA Practice team. Send us your feedback and ideas
RIBA Core Curriculum Topic: Health, safety and wellbeing.
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Posted on 26 July 2018.
