B52s

It is my understanding that self builders can appoint a principal designer if they so wish. As said previously, there are many reasons why a self builder would choose to exercise this right. The main reason appears to be that it is common place for architects working on domestic projects not to have the necessary CDM skills, knowledge and experience to undertake the principal designer role and therefore are unable to offer or accept this role. Under these circumstances and to facilitate commencement of architectural design, the domestic client will be required to appoint a principal designer. Architects can often assist the domestic client in this regard by suggesting organisations that would be able to fulfil the role. If the domestic client does not appoint a principal designer, this may well delay the commencement of design as the architect would be foolhardy to proceed “at risk” of being automatically selected as principal designer due to being the designer in control of the pre-construction phase. I fully agree with JSHarris in his clear legal definition of appointment. However, as JSHarris points out, "appoint" is used widely in construction circles to refer to "contract with". In the case of the contractual relationship between a domestic client and a designer, the word "appoint" means "contract with". The term "appoint" adopted in CDM2015 is no different. I feel it serves little purpose in taking the term “appoint” out of the context of the statutory CDM regulations that are applicable to the construction industry and have been since 1996. It is also to be noted that in the event of a serious accident, the HSE will focus in on the intentions of the “project team” in respect of compliance with the spirit of the CDM regulations rather than scrutinising the domestic client’s interpretation of “appoint”. The HSE have made it absolutely clear that it has no intention of pursuing domestic clients for breaches in CDM as it recognises that it is unable to prosecute domestic clients under the Health and Safety at Work Act 1974. Domestic clients do have a duty of care, however, I do not wish to dwell on this as I feel its best that I concentrate solely on CDM where I can provide meaningful assistance to self builders. Regulation 5 of CDM2015 draws attention to the absolute need for clients to make appointments in writing. This supports JSHarris’s comments regarding contractual relationships in respect of appointments. It must be pointed out that Regulations 5(1) and 5(2) are applicable to clients (i.e. both commercial and domestic clients). In terms of domestic clients, Regulations 5(1) and 5(2) are only extinguished if the domestic client fails to make the appointments. As discussed in previous posts, under these circumstances, the duties are automatically transferred to other dutyholders. So, if a domestic client [self builder] wants to appoint a designer with control over the pre-construction phase as principal designer, then it is a perfectly reasonable request and is supported by Regulation 5. NOTE 1: The appointments made by the domestic client (as outlined above) are time sensitive as the contractual arrangements require to be terminated at the point when the construction phase commences. The principal designer (and other designers) can be novated to (i.e. work to) the principal contractor to allow these roles to continue, however, it maybe far simpler, from a domestic client perspective, to terminate all appointments at this juncture. NOTE 2: If design work requires to be undertaken during the construction phase, regulation 7(2)(a) will apply by default. The effect of this means that the designer in control of the pre-construction phase of the project is the principal designer. The [second] pre-construction phase commences when the construction phase starts. Noting that the previous [first] pre-construction phase, where appointments may have been made by the domestic client, has been severed by way of agreed terminations of appointment/contract. NOTE 3: In respect of CDM2015, ‘pre-construction phase’ is not solely reserved for design work undertaken prior to the commencement of the construction phase. The reason for this is that it is widely accepted in industry that design work often continues during the construction phase (e.g. kitchen fit-out, designing electrical, plumbing and heating installations, etc.). As discussed in Appendix 6 (para. 6) of the CDM Guidance Note; As a result of a principal contractor taking on the client duties in relation to managing projects as detailed in regulation 4, the principal designer involved in the project will work to [be novated to] the principal contractor in their role as the ‘client’. If the domestic client does not appoint a principal designer, the role of the principal designer falls to the designer in control of the [second] pre-construction phase of the project. NOTE 4: CDM2015 does not use the terminology ‘first’ or a ‘second’ pre-construction phase of the project. I have merely added this to try and provide a line in the proverbial sand where the primary design work is carried out (prior to construction) and where further design work is undertaken during the construction phase.

JSHarris, Re warby's post: Under CDM; “domestic client” means a client for whom a project is being carried out which is not in the course or furtherance of a business of that client. Would that not rule out a “domestic client” from being a business entity?

Sorry JSHarris, I'm still confused. I am trying to put this into straight forward context (pushing CDM to one side). So back to my question; Can a homeowner appoint an architect? Yes or No.

Forgive my ignorance here. Keeping it simple (for my benefit as I appear to be having a senior moment) - Can a homeowner appoint an architect? Yes or No.

Being a landowner and/or homeowner conveys legal title and authority.

Really? The RIBA Domestic Project Agreement 2010 (2012 revision): Architect has been rigorously checked for legal accuracy. Formally recommended by the RIBA and readily tailored to the needs of specific projects, it presents a secure contract document for the appointment of architects. Pack contains: - Conditions of Appointment for an Architect, with Small Project Services: designed to create a fair balance of risk between the parties, it complies with the Unfair Terms in Consumer Contracts Regulations 1999 in setting out the obligations of the architect and a consumer client. The Small Project Services schedule is bound into the middle pages. If appropriate, it can be replaced by electronic schedules available from www.ribabookshops.com/agreements - Fees and Expenses: optional, it can be used with any of the RIBA Agreements 2010 (2012 revision) - Notes: Part 1 Notes on Use and Completion; Part 2 Model Letter: the model letter is signed under hand as a simple contract. CDM Regulations April 2015: Addendum Download the addendum for this RIBA Agreement addressing the requirements of the Construction (Design and Management) Regulations 2015. The addendum applies to the RIBA Services Schedules (both 2012 revisions and RIBA Plan of Work 2013 compatible versions).

JSHarris, it sounds very much like that there are "other" reasons why a self builder would not want to appoint a principal contractor and principal designer. But perhaps I am just being an old cynic. I am sure we not in disagreement regardless of my thoughts, that a domestic project still requires a principal contractor and principal designer irrespective of whether the domestic client appoints one or not.

Really, JSHarris? which clause in CDM2015 is this from? A domestic client has the legal right to appoint a Principal Contractor and Principal Designer.

So the correct legal position is; a self builder can appoint a Principal Contractor and a Principal Designer, just like they can appoint an architect and a structural engineer (which they do).

JSHarris, I belief a self builder can appoint a Principal Contractor and a Principal Designer, just like they can appoint an architect and a structural engineer (which they do). They may choose not to, but it is my understanding that they can. I would be grateful for your further thoughts on this apparent anomaly.

Steptoe does have a point. Whilst Steptoe's post is a little off the mark in terms of the wording and who appoints the contractors, the spirit of what is intended by CDM2015 appears to be largely ignored by self builders. Regulation 5 (1) Where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time, the client must appoint in writing— (a) a designer with control over the pre-construction phase as principal designer; and (b) a contractor as principal contractor. (2) The appointments must be made as soon as is practicable, and in any event, before the construction phase begins. I am well aware of the default position stated in Regulation 7 which is applicable to domestic clients which gives the domestic client the opportunity not to appoint a PD or a PC. However, I must say that it would be morally repugnant of the domestic client not to consider the competence of those who will take on the PD and PC duties for the project. There is one thing saying "I don't have a duty under CDM" and another to live with consequences of knowing you could have done more to stop a tragic accident or future fatal illness (e.g. due to exposure to asbestos). Regulation 5 is the moral high ground that self builders should strive to achieve. If the self builder appoints professionals (with demonstratable skills, knowledge and experience coupled with organisational capability) you are "building in" safety and health into your project. This being the same moral and legal CDM obligations that a commercial client has to accept. There is no difference in terms of safety and health risk management between a domestic project and a commercial project, its just a matter of scale and complexity. "Horses for courses", as they say. As JSHarris points out. There are no obligations placed on domestic clients by CDM, therefore the domestic client can make the appointments, as required under Section 5 without fear of prosecution under CDM. Perhaps putting things into a softer context; probably all domestic client's will take due care when appointing an architect; checking that they have the necessary skills, knowledge and experience to undertake the design. All that is asked by way of Section 5 of CDM2015, is to apply the same logic when appointing the principal designer and principal contractor before the construction phase begins (which means before commencement of ground works, securing the site by way of heras fencing, etc.)

I would agree, a slip of the proverbial pen on my part (which I have subsequently corrected on the post that you refer). There is an obligation for the project to have a principal designer, but this obligation is not placed on the domestic client. However, it is noteworthy that there are some circumstances that a domestic client may choose to appointing a principal designer (even although there is no obligation to do so) rather than the role falling (by default) to an architect/designer who may not have the necessary PI to take on this statutory obligation.

As I said. the CDM default position is; If the domestic client fails to appoint a principal designer, the role will fall (by default) to the designer in control of the pre-construction phase of the project. Furthermore, if the domestic client fails to appoint a principal contractor, the role will fall (by default) to the the contractor in control of the construction phase of the project. I would agree with JSHarris that the legislation is clear.

Having checked the SI, I would confirm that those who carry out construction work entirely themselves (i.e. in DIY capacity) are outwith the scope of CDM2015. As previously advised, all other construction work activities (i.e. non-DIY) are within the scope of CDM2015. So I therefore believe the answer to the thread topic is: If you are a self builder carrying out all construction activities yourself (i.e. in DIY capacity) there is no CDM obligation to appoint a principal designer. However, if you are a self builder and not carrying out all construction activities yourself, there is indeed an obligation for principal designer duties to be undertaken. If the domestic client fails to [chooses not to] appoint a principal designer, the role will fall (by default) to the designer in control of the pre-construction phase of the project.

Okay, but right now I need to get back to "keeping the wolf from the door". I'll post later. p.s. "self build by an individual" is DIY which is clearly exempt from the SI. If you are not DIY, then the SI applies in all cases.

No, no JSHarris, that is not necessary - I can very easily do that myself. I just mean't that if you were referring to a specific clause (at hand) it would have been good to be on the same page as you, so to speak. But thanks again for your kind offer.

Sorry to be a pain JSHarris, but could you point me to the specific clause in the SI that makes you arrive at this position. Clearly, if the self build is undertaken as DIY, then indeed it is exempt, but under other arrangements? Many thanks.

I would suggest that a further option should have been included as this appears to have been overlooked by CITB: Option 5 - As a domestic client, if you do not appoint a principal designer and principal contractor, under CDM2015, client duties will automatically be transferred to others (no CDM input by self builder). Regulation 7(2) of CDM2015 confirms: (a) The designer in control of the pre-construction phase of the project is the principal designer; (b) The contractor in control of the construction phase of the project is the principal contractor.

Okay, so as you rightly point out, there are only 4 possible scenarios offered forward by CITB: Option 1 - DIY (exempt from CDM2015) Option 2 - Appoint a principal designer and principal contractor under CDM2015 (extremely limited CDM input by self builder). Option 3 - Employ a contractor who is then appointed principal contractor under CDM2015, also appoint a principal designer (extremely limited CDM input by self builder). Option 4 - Forming a company to act as contractor under CDM2015. (extremely unlikely consideration for self builders). So PeterW, what option would you choose for yourself if you were a potential self builder?

Yes, and now refer back to Regulation 7(1)(a): Where the client is a domestic client, the duties in relation to managing projects in regulations 4(1) to (7) must be carried out by the contractor [i.e. the newly formed company created by the self builder]. In this situation, matters within the domestic client's control would be restricted to; for example asking the contractor to confirm they have arrangements in place to ensure the construction site is compliant with Part 4 of CDM2015. Perhaps asking the contractor to demonstrate their competence relative to construction site setup and traffic management could be another matter within the client's control.

I feel its worth highlighting the specific text above, and would offer a slight adjustment to the term "contractors", which I feel should read "employed trades" [posturing the same language used in the first sentence] in order to remove dubiety in terms of what is actually being conveyed in the above guidance, communicated by CITB. It is my understanding that the intention is to indicate that the self builder can, once formed as a business, take on the role of contractor. As a contractor, the self builder can then undertake the construction works with assistance of trades persons directly employed by the contractor at different stages in the build. Under this arrangement, there are no sub-contractors and therefore no CDM obligation to appoint a principal contractor or principal designer. In order for the self builder to meet with the requirements of Part 4 of CDM 2015, there is an absolute requirement for the self builder to become a business, because as stated previously on this thread, CDM2015 can only be enforced against commercial organisations. This is because CDM2015, as you will probably be aware, is enacted under the Health and Safety at Work etc. Act 1974. So in basic CDM speak, and in the eyes of the law (in terms of strict liability), the construction works can be undertaken by one contractor. Under this arrangement, all trades (undertaking works at different times) are required, under employment law, to be employees of one contractor. Remembering of course that all employees [defined as workers under CDM] also have a duty to work in compliance with CDM2015.

NOTE: My comments above, in relation to 7.2 (a) and 7.2 (b), are only applicable if the self-builder is an organisation.

There are several ways a self-builder could end up as principal designer. For example; if the architect was only engaged up to building warrant, which is common. Under 7.2 (a) The designer in control of the pre-construction phase of the project is the principal designer; which potentially could fall to the self-builder. The self-builder could also end up as principal contractor on projects where more than one contractor will be engaged. Under 7.2 (b) The contractor in control of the construction phase of the project is the principal contractor. Where did the above definition of "contractor" come from as I don't believe this definition appears in CDM Guidance L153? CDM Guidance L153, confirms the following CDM duty holders: - Contractors are those who do the actual construction work and can be either an individual or a company. - Principal contractors are contractors appointed by the client to coordinate the construction phase of a project where it involves more than one contractor. [Note: the principal contractor can also automatically become a duty holder as stated in 7.2 (b) in situations where a domestic client has not appointed one.]

No, I don't think this is the correct interpretation of Section 7 (b). Unfortunately CDM Guidance L153 is less than clear. Section 7 (b) is actually referring to the transfer of the client's duties in relation to managing projects in regulations 4(1) to (7) and has nothing to do with the transfer of PD or PC duties.

Apologies are in order, my intentions were entirely honourable and not to mislead or promote scaremongering. I totally agree. With the benefit of hindsight I should not have posted this article without fully scrutinizing its content. It is not appropriate given that the charges all relate to working practices and absolutely nothing to do with CDM principal contractor duties (as I had incorrectly thought). The article came from a reliable source, however, a poetic licence appears to have been used by the journalist to sensationalise the report. Is it best that I remove the entire post, or should I ask a moderator to do this for me?