The introduction of the revised Construction and Design Management (CDM) 2015 Regulations took many of us by surprise as they were not widely trailed, particularly amongst the self build world; I first heard about the changes in January of this year. The previous regulations issued in 2007 included a ‘Domestic Client’ exemption clause which meant that self build projects and minor works such as renovations and extensions were exempted, although where self builders were self project-managing and hiring tradesmen there were basic requirements to control risks, co-ordinate activities and to ensure trades were competent and able to co-operate on site. However, despite that there was no requirement to notify the Health and Safety Executive (HSE) and you would not expect any site visits or inspections unless something catastrophic happened.
The CDM 2015 regulations removed the Domestic Client exemption at a stroke, transferring their CDM responsibilities to the Principal Designer (PD) and the Principal Contractor (PC) who would be appointed in writing by the client. That would be the extent of the legal responsibility of a domestic client under the new rules. If the PD and the PC were fulfilling their responsibilities, they were deemed to be meeting yours, too. So far so good, but the assumption in the early CDM 2015 guidelines made the sweeping assumption that there was always going to be a PD in the form of an architect or designer or someone who could be appointed PC such as a general builder or a lead contractor. It soon became apparent that there were some significant grey areas for self builders. What about those doing everything themselves in a DIY build? Would they be expected to be CDM experts? What about those who were self project-managing and hiring the individual trades? With no main contractor on site, who was deemed to be exercising control and therefore responsible for CDM matters on site? The flurry of letters, e-mails and questions to the self build press and on the Self Build Portal Forum showed that the situation was as clear as mud!
I undertook to get some clarification from the HSE. What I thought would be a fairly straightforward process turned into a protracted series of conversations with the HSE that invariably pointed me back to the CDM 2015 guidelines and the stock answer: “there was nothing to worry about because domestic client CDM responsibility passed to the PD and PC….” Until, at last, the penny dropped and I received a sensible reply from a very helpful senior HSE manager who took the time to investigate and provided full answers to my queries.
“How does CDM 2015 Apply to Self Build Projects?
There are a number of potential scenarios. In all these scenarios the self builder is a “domestic client”, if the structure they are building will be a residential home they will live in, and is not constructed as part of a business. If the self builder is carrying out the work for a business purpose, or to sell the property directly, then the self builder is not a domestic client and the whole of CDM 2015 applies.
Self build Scenarios;
a. The self builder does it all himself, employs no contractors, and uses the structure constructed as a home to live in afterwards. This will be a DIY project because no –one involved is “at work” in the meaning of the health and Safety at Work etc Act 1974.
b. The Self builder appoints an architect or designer as Designer or Principal Designer, (Principal Designer where there is likely to be more than one contractor engaged on the project) and appoints that person or business to take on the client duties on behalf of the Self builder. In this instance the Principal Designer may also be appointed as Principal Contractor, for the purpose of co-ordinating the construction phase, if that person or business has the skills, experience and knowledge to do the job. It is likely that many traditional architects will have the necessary project management skills and experience to carry out this role. In this case the self builder has no legal duties beyond the appointment of Principal Designer and Principal Contractor.
c. The self builder employs a contractor to carry out construction work, and then appoints that contractor as PC for the duration of the project, because there is, or is likely to be, more than one contractor involved in the project. The emphasis will be on the co-ordination and management of the construction phase. In this case the self builder again has no legal duties beyond the initial; appointments of PD and PC.
d. The self builder acts as their own project manager, employing individual trades at different times. In this instance the self builder steps out of the DIY arena, because they are taking control of construction work. Where a self builder, controls the way in which construction work is carried out, by a person at work, they must comply with all the matters outlined in Part 4 of CDM 2015 This requirement is set out in Regulation 16 of CDM 2015, which effectively replaces Reg 26 in CDM 2007, this is not a new requirement. In this scenario the self builder will in effect become a contractor. In this case HSE will expect self builders to demonstrate sufficient health and safety capability to meet the requirements of Part 4 of CDM 2015. Individual contractors will be expected to be able to advise the self builder on any specialist matters within their own work activities. The expectation on a self builder in this position will be on co-ordination and management , not on direct supervision of contractors on site. The self builder is entitled to expect contractors to plan, manage and monitor their own work in compliance with the CDM Regulations.”
If you want to know what your NaCSBA Self Build Executive Member has been doing for the past few months, I was getting this answer for you. I hope this helps those self builders, renovators and extenders who were looking for clarification!
