Posted by Gareth Williams, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Developer, Contractor, Consultant, Landlord or Tenant: Who is the Principal Designer on a Construction Project?
The Construction (Design and Management) Regulations (’CDM Regulations’) 2015 came into force on 6 April this year. Transitional arrangements allow existing CDM Co-ordinators appointed under the CDM Regulations 2007 to continue in that role until 6 October 2015, but for any new project (and any existing project from 6 October onwards) a ‘Principal Designer’ must be appointed in place of the CDM Co-ordinator. Property and construction documents should be updated to reference both the new role of ‘Principal Designer’ and the ‘CDM Regulations 2015’.
A ‘Client’ under the legislation (which may, for example, include the owner, developer, contractor, landlord or a tenant carrying out works or more than one of these) must consider which party to appoint as Principal Designer. If a Client fails to appoint a Principal Designer to fulfil the duties required under the new legislation, the Client is Principal Designer. Many Clients will not have the experience necessary to take on this role, in which case it is key that an appointment is made at the start of the pre-construction phase.
The CDM Regulations 2015 effectively rule out the previous practice of appointing a CDM Co-ordinator in a standalone role. Whoever carries out the new role must have a ‘design’ function within the project and must have ‘control’ of the pre-construction phase.
A contractor can be appointed Principal Designer, but only if he has a design role and has control of the pre-construction phase.
A design consultant can be appointed Principal Designer alongside his role as architect, engineer or project manager, but
- It’s the Client’s responsibility to ensure that the consultant is competent to perform the role. Many small practices may not yet be geared up to offer this service; and
- The CDM Regulations 2015 are not entirely clear as to whether the Client is required to appoint a Principal Designer throughout the duration of the project. Client’s should err on the side of caution and retain the Principal Designer even after novation of the consultant’s other services. This may mean the design consultant entering into a separate appointment in respect of each role.
Given the importance of managing health and safety on construction projects and the recent removal of caps on fines in magistrates’ courts for health and safety offences, the changes introduced by the CDM Regulations 2015 require more than just an update to references in property and construction documents.
If you have any questions on the impact of the CDM Regulations 2015 or construction law and contracts generally please contact Jemma Regan-Cummins.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.