One of the tasks charged to the Strategic Forum, which has been set up by the DTI and is chaired by Sir John Egan, is a revision of the Construction (Design & Management) Regulations 1994 ("the Regulations"). This is in response to a widespread belief in the construction industry that the Regulations have not achieved the objectives for which they were introduced. This belief appears to be supported by figures which demonstrate that accidents on construction sites are as prevalent as ever.
The Regulations came into force early in 1995 to give effect to European legislation relating to health and safety on construction sites. The purpose of the Regulations is to ensure that health and safety issues are properly addressed throughout the processes of design, construction, maintenance and demolition. With that aim in mind, the Regulations impose obligations upon clients and designers in relation to health and safety, which were previously considered the responsibility of the contractor, and require the appointment of a planning supervisor in an overseeing and co-ordinating role.
In order to consider whether the Regulations are achieving their objectives, it is useful first to look at the nature and extent of the obligations imposed on the parties in the construction process.
The role of the planning supervisor
The planning supervisor has the key co-ordination role in relation to health and safety during design, together with responsibilities during construction phase relating to preparation of health and safety documentation. The specific duties set out in the Regulations are as follows:
- Notifying the Health and Safety Executive of the nature and extent of the Project. The degree of detail required by the HSE will depend upon the complexity of the project.
- Ensuring co-operation between the designers. The planning supervisor is required to take reasonable steps in this regard, which will include co-ordination of relevant information between designers, ensuring designers take proper account of health and safety in their design, and ensuring designers coordinate their work to enable different aspects of design to interact satisfactorily in relation to health and safety.
- Ensuring designers comply with their duties under the Regulations. This is likely to require a review of designers’ procedures to ensure that the designer will analyse and assess health and safety risks in the course of design, together with a review of design documentation to check whether adequate information regarding health and safety issues has been included.
- Preparing the health and safety plan. The plan is prepared at the pre-tender stage as it is required for the tendering process from which the client will select the principal contractor. The pre-tender plan provides health and safety information for prospective principal contractors. Specific answers in the contractors' tender return will be required in response to health and safety questions raised in the plan. Following acceptance of tender, and throughout the construction process, the principal contractor is then obliged to maintain and develop the plan.
- Advising the client in relation to the appointment of designers and contractors, and ongoing monitoring and reporting to the client upon the health and safety plan being maintained by the principal contractor during the construction phase.
- Preparation of the health and safety file. The health and safety file is the record of information relating to key health and safety risks which will require management during subsequent maintenance, repair or construction work at the building. It is, to an extent, a statutorily imposed O&M manual. The file will be handed to the client on completion of the project, and may then be passed, in part or whole, to subsequent owners and occupiers of the building.
The role of designers
The definition of a designer in the Regulations is broadly drafted to include any person or undertaking which carries on business or trade in connection with the preparation of any design relating to a building or structure.
A designer is required to ensure that, in relation to any design which he prepares and which he is aware will be used for the purposes of construction work, he or she will avoid foreseeable risks, combat at source existing risks, and give priority to protective measures, each in relation to persons carrying out construction work and all persons who may be affected by such work.
In addition, a designer is required to ensure that his or her design documentation includes adequate information with regard to any structure or materials which might affect the health or safety of the persons carrying out construction work at the building or any persons who may be affected by such work.
Finally, each designer is required to co-operate with the planning supervisor and with other designers to enable each of them to comply with their requirements under all relevant statutory provisions in relation to the construction work.
The role of the principal contractor
The primary role of the principal contractor under the Regulations is to ensure co-operation between all contractors on site in relation to safety matters and to ensure that all contractors comply with any rules in the health and safety plan.
The principal contractor also has the obligation of developing and maintaining the health and safety plan, during the construction phase.
In addition, the principal contractor is required to ensure that only authorised persons are allowed on site, and that all health and safety notices are clearly displayed at site.
Finally, the principal contractor is required to co-operate with the planning supervisor in providing any information which is required to be included in the health and safety file.
The role of the client
The primary obligation of the client is to appoint the planning supervisor, the designers and principal contractor. The client must be reasonably satisfied that the persons he or she proposes to appoint for these roles each has the competence to perform the functions required by the Regulations. This is particularly so in relation to the appointment of the planning supervisor, as it will be the planning supervisor who will then advise the client on the suitability, from a health and safety perspective, of the other parties whom the client will need to appoint.
The client must also ensure that construction work does not commence until the health and safety plan has been prepared and then that the health and safety file is delivered at the end of the project.
Where do problems arise?
The main criticism of the Regulations is that they do not achieve the integrated approach required to ensure that health and safety issues are properly addressed at the earliest stages of a project. While there are references throughout the Regulations to requirements to liaise with other parties involved in the construction process, they fail to impose sufficiently stringent obligations on the parties, or require liaison sufficiently early in the design process.
One school of thought is that the parties must all be involved in dialogue from the very earliest stages to ensure that health and safety risks are effectively "designed out" of the works. This truly would be an innovative approach, given the traditional contractual boundaries from which the industry has the greatest difficulty breaking free at the best of times. It is also uncertain how this could work in practice.
Others argue that practical problems will inevitably arise in attempting to achieve such an integrated approach to health and safety, leading to conflicts between the parties on issues ranging from cost control to design innovation and buildability.
Planning supervisors argue that the main problems with the Regulations relate to the restricted powers and lack of procedures available to them to ensure that health and safety is properly managed throughout the project. Planning supervisors with the authority to force other members of the construction team to comply with the Regulations would, it is argued, have much greater impact.
The consultative process
Whilst the Forum is presently in the early stages of the consultative process, current indications suggest there is enthusiasm for the introduction of team co-operation at an early stage, together with the establishment of a statutory role of an independent safety adviser. Also, proposals are being considered to require members of the construction team to demonstrate competence in relation to health and safety, perhaps by means of accreditation schemes.
The consultative process and any redrafting of the Regulations are likely to take some years to complete. In the meantime, the HSE has issued a revised Approved Code of Practice (ACOP) for the Regulations which deals in more detail with the required contents of the health and safety plan both in the pre-tender and construction phases. The preceding ACOP dealt with the pre-tender plan only.
The Regulations, in one form or another, are here to stay. Any revision must address the problems which have been experienced in practice. It is evident that more clearly defined obligations relating to integration of the parties at as early a stage as possible would be beneficial, though it will take a radical approach in redefining traditional party boundaries within the construction team to improve the quality of health and safety design. Extended powers of the person in charge of health and safety, whether he is called the planning supervisor or the independent safety advisor must also be required to ensure compliance. The level of regard in which planning supervisors are held must inevitably be related to their limited powers in the construction process. Also, the HSE must be seen to be imposing sanctions fairly and effectively in cases of non-compliance with the Regulations.
The further findings of the Forum's consultative process are therefore awaited with interest. Those who wish to comment on the emerging findings of the Forum can write to: The Forum for Construction Secretariat, c/o Construction Directorate, 3/J4 Eland House, Bressenden Place, London, SW1E 5DU
For further information please contact Andrew Tobin at [email protected] or on +44 (0)20 7367 3536
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