The Construction (Design and Management) Regulations 2015, or CDM Regulations, relate to health and safety during construction and engineering projects, and property development including small or domestic projects. The 2015 CDM Regulations came into force on 6 April 2015 and replace the CDM Regulations 2007, following wider changes to health and safety legislation.

Emma Wells, solicitor in the commercial property team at Ansons Solicitors, explains the changes and how they might affect you as a landlord, tenant or if you are purchasing commercial property.

Landlords and tenants of commercial property are most likely to come across the CDM Regulations. For example, lease repairing clauses or in the landlord’s written consent to the tenant to carry out works. Although, when purchasing a commercial property, a purchaser should always check whether the building has a health and safety file if works have been carried out that would be governed by the CDM Regulations.

The 2015 regulations maintain many of the key 2007 rules and procedures, but there are a number of key changes to be aware of. For those projects that had already commenced on 6 April 2015, the new regulations require that transitional arrangements are met. For further information on these transitional arrangements, please contact our commercial property solicitors directly.

Duty holders

The CDM Regulations apply to “duty holders”. This means:

• clients – a person who carries out the project or appoints someone to carry out the project. If works are being completed to a property that a tenant lets from a landlord, both a tenant and a landlord can be a “client”. In these circumstances, an election can be made to confirm who is the “primary” client, usually the tenant, and often landlord’s consent to works will be subject to the tenant electing themselves as the “primary client”. The landlord’s duties under the CDM Regulations would then be reduced, although not extinguished;
• designers – anyone who prepares or modifies a design or arranges for others to do so. A design is described as “drawings, design details, specification and bills of quantities (including specification of articles or substances) relating to a structure, and calculations prepared for the purposes of a design”;
• contractors – the person who manages or carries out the construction work;
• principal contractor – also appointed. Only required where a project uses, or it reasonably foreseeable that a project will use, more than one contractor; and
• principal designer – appointed if the project uses more than one contractor. The principal designer must plan, manage and monitor the pre-construction phase, ensuring that the project is carried out without risks to health and safety. The principal designer replaces the CDM co-ordinator previously required under the 2007 regulations.

Duties

The CDM Regulations are made up of general duties and specific duties.

General duties apply to each duty holder regardless of their category, as set out above, and are to:

• address competence – by reviewing the competence of other duties holders;
• cooperate – by seeking the cooperation and actively cooperate with others;
• coordinate their activities with others;
• apply the principles of prevention. The principles of prevention include avoiding risks; evaluating risks that cannot be avoided; combatting risks at source; adapting work to the individual; replacing dangerous with non or less dangerous; developing an overall prevention policy; and giving appropriate instructions to employees; and
• ensure that site welfare requirements, such as the provision of toilets and washing facilities, are met.

Specific duties apply to each category of duty holder. These duties will not be discussed in detail in this article but, by way of an example:

• clients have a duty to collate and supply information – the 2015 regulations place a greater emphasis on the role of the client;
• designers have a duty to make design information available to other duty holders;
• contractors have duties both before starting and during the construction work such as the training of workers and, where there is only one contractor, to put in place a construction phase plan prior to setting up the construction site;
• the principal designer has a duty to prepare the health and safety file, please see below; and
• the principal contractor has a duty to display health and safety information on site.

In the event that a project has more than one contractor, or it is reasonably foreseeable that it will, the client must appoint a principal designer and a principal contractor before the construction phase begins. The specific duties of the principal designer and the principal contractor would then also apply.

Given the extent of the duties under the CDM Regulations, when negotiating a lease, both parties will need to consider the specific covenants that will need to be placed on the other. For example, in a lease alteration clause, the landlord may require all alterations to be carried out in accordance with CDM Regulations. The tenant would need to comply with the CDM Regulations if they applied but having an express requirement offers the landlord a remedy for breach of lease if the tenant does not comply.

Notifiable

The CDM Regulations apply to all construction work. However, on larger projects, the client has a duty to notify the relevant Health and Safety Executive. A project is “notifiable” if it is likely to involve more than 30 days duration of construction work and have more than 20 workers on site at any point, or more than 500 person days of construction work, whatever the duration. Most commercial projects are notifiable.

Health and safety file

The 2015 CDM Regulations require a health and safety file to be prepared by the principal designer. It is a record “… containing information relating to the project which is likely to be needed during any subsequent construction work to ensure the health and safety of any person …”

There can be a health and safety file for each structure forming part of the project or one file, if the works are entirely under the CDM Regulations 2015, but the information relating to each site or structure must be easily identified.

The amount and type of detail required in the health and safety file will depend on the scale of the project and the type of risks involved, but a health and safety file will commonly include:

• a brief description of the construction work carried out;
• a description of any residual hazards that remain and how they have been dealt with;
• a statement of the key structural principles and safe working loads for floors and roofs, particularly where these may preclude placing scaffolding or heavy machinery there;
• a record of any hazardous materials used. For example, paint strippers;
• information regarding the removal or dismantling of installed plant and equipment;
• health and safety information about equipment provided for cleaning or maintaining the structure;
• a summary of the nature, location and markings of significant services, including underground cables, gas supply equipment and firefighting services; and
• information and as-built drawings of the structure, its plant and equipment.

When negotiating a lease, the landlord will need to consider who is responsible for maintaining the health and safety file. If there is only one tenant, the lease must place obligations on the tenant. For example, to maintain the file, allow it to be inspected and to pass it to the landlord on expiry of the lease. If the property has more than one tenant, then the landlord is normally responsible for the health and safety file but the lease should still contain provisions regarding it.

The above matters are important to consider when negotiating a new lease, especially if a party proposes to carry out development works to the property. It is imperative to remember that parties will have to comply with the CDM Regulations, in any event, but is an additional obligation to comply with the CDM Regulations also necessary in the lease documentation?

For more details on the CDM Regulations in leasehold property transactions, please contact Emma Wells on 01543 257 999 or ewells@ansonsllp.com. Ansons Solicitors have offices in Cannock and Lichfield, Staffordshire.