Principal Designer role

[Jeremy Harris]

I,

once again, have to say that no one should seek to take a responsibility that they are not obliged to accept and for which they are unqualified, in law, to undertake.  Advising self-builders to follow the spirit of CDM 2015 is exceedingly foolhardy.  Doing so could be enough to convince a court that an enhanced duty of care applies, because the domestic client has willingly put themselves forward for a responsibility that they should not have accepted.

 

19 minutes ago, B52s said:

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 such concept as "moral high ground" in law.  Law is always, without exception, strictly interpreted from the wording of the applicable legislation and any applicable modifying case law.  If  self-builder were to take the extremely foolhardy step of appointing anyone into any CDM role then they would be creating a liability for themselves.  There is no way on earth I would be so very stupid as to even think of doing this; I've seen what happens to people's lives when things go wrong after they've ignored the law but tried to do the "best thing".  It is not pleasant.

 

19 minutes ago, B52s said:

 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.)

 

Once more, it is important to note, that Regulation 5(3) and (4) of CDM 2015 DOES NOT APPLY TO A SELF BUILDER.  A self builder cannot, and must not, appoint either a Principal Contractor or a Principal Designer.  To do so would be extremely foolhardy, as it could be construed that the self builder was intending that they should be treated as a business or other undertaking, with all of the responsibilities and liabilities that position carries.

 

Finally, ignoring CDM 2015, there are other requirements in law that DO apply to a self builder, in a similar way that they apply to any other member of the public, and these provide perfectly adequate guidance as to what needs to be done to ensure that a self-build site is adequately controlled and made safe for THIRD PARTIES (i.e. not including workers or contractors).

 

Edited April 21, 2017 by JSHarris

[B52s]

9 minutes ago, JSHarris said:

...A self builder cannot, appoint either a Principal Contractor or a Principal Designer.

 

 

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.

[Jeremy Harris]

9 minutes ago, B52s said:

 

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.

 

 

If a self builder was to take such a rash and foolhardy action, then they would be accepting that they were not a domestic client, with all the added responsibility that brings with it.

 

This is all a lot of hot air about something that has no direct application to self builders at all, other than that they should be aware of people trying to make it seem as if they should accept some responsibilities under legislation that is intended for, and aimed at, the construction industry.

 

There is a long standing legal requirement that everyone has a duty of care to ensure that their land and home is as safe as is reasonably practical.  This applies to self builders who are required to make sure that their sites are as safe as THEY can reasonably make them, accepting that they may be limited in their ability to do this, due to the fact that they are amateurs and so domestic clients for a range of businesses that will be working for them under contract.  This duty of care is not something that falls under the CDM regulations, and predates them by decades.

Edited April 21, 2017 by JSHarris

[B52s]

2 minutes ago, JSHarris said:

 

 

If a self builder was to take such a rash a foolhardy action...

 

 

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).

[B52s]

11 minutes ago, JSHarris said:

If a self builder was to take such a rash a foolhardy action, then they would be accepting that they were not a domestic client.

 

 

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

[Jeremy Harris]

15 minutes ago, B52s said:

 

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).

 

No.  By doing so they cease to be considered as a domestic client, as they have willingly absolved themselves of that status.  Contracting with (not appointing, there is a legal difference) an architect of SE is a straightforward domestic client to contractor relationship, where the domestic client does not bear any CDM-related responsibility.

[Jeremy Harris]

9 minutes ago, B52s said:

 

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

 

 

It is not in the CDM Regulations, it is a principal in law that applies to a wide range of circumstances.  I quoted earlier a case where a man found himself charged with double manslaughter because he freely offered to help a friend, and by doing so he assumed a greater duty of care in law than he would if he had just walked past without offering to help.

 

A domestic client cannot "appoint" anyone.  They do not have the authority to do that.  They can contract with someone to provide a service, or supply goods, but that has a different meaning in law and carries a lesser responsibility for the domestic client.

 

As an aside, you're the expert in this, selling that expertise in order to earn a living, so why is it that others here are having to give advice on laws that you profess to be a subject matter expert in?

Edited April 21, 2017 by JSHarris

[Steptoe]

Heads

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In

Buried

 

 

[ToughButterCup]

12 minutes ago, Steptoe said:

Heads

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In

Buried

 

Well @Steptoe, I see the opposite. I see structured, polite, sometimes uncomfortable, but almost always  useful discussion. I see engagement. I see help for bewildered self builders. To get this quality of debate elsewhere  I'd have to pay a good deal of money.  

[Ian]

I am a Chartered Architect and also carry out  work regularly as a CDM Principal Designer. Within my company I also employ CDM specialists who do nothing else other than working as CDM Principal Designers.

 

In my opinion the guidance in this thread by @JSHarris is correct.

 

 

[B52s]

10 minutes ago, JSHarris said:

It is not in the CDM Regulations, it is a principal in law that applies to a wide range of circumstances.

 

A domestic client cannot "appoint" anyone.  They do not have the authority to do that.  They can contract with someone to provide a service, or supply goods, but that has a different meaning in law and carries a lesser responsibility for the domestic client.

 

 

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.

[ToughButterCup]

5 minutes ago, Ian said:

I am a Chartered Architect and also carry out  work regularly as a CDM Principal Designer. Within my company I also employ CDM specialists who do nothing else other than working as CDM Principal Designers.

In my opinion the guidance in this thread by @JSHarris is correct.

 

And the acid test of deep-learning is knowing why, and being able to articulate, why you don't accept the arguments put by others. That's why this thread is, frankly, riveting.

[jamiehamy]

27 minutes ago, Steptoe said:

Heads

Sand

In

Buried

 

 

I don't agree. 

 

"** CDM 2015 applies if the work is carried out by someone else on the domestic client’s behalf. If the householder carries out the work themselves, it is classed as DIY and CDM 2015 does not apply." applies to me. 

 

"

Though in scope of CDM 2015, their client duties are normally transferred to:

• the contractor for single contractor projects
• the principal contractor for projects with more than one contractor

However, the domestic client can instead choose to have a written agreement with the principal designer to carry out the client duties.  '

 

Also applies to me. 

 

I'm with Jeremy here - CDM does not apply to Joe Public who is untrained and unqualified to enforce it. 

 

That's not to say there is zero responsibility but not in terms of CDM. 

[Jeremy Harris]

26 minutes ago, B52s said:

 

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.

 

The key is the use of the word "appoint".  A domestic client (i.e. a self builder, whether doing the work themselves or contracting with others) cannot appoint anyone, they do not have the authority to do so.  They can, and most do, contract with a wide range of businesses, and by doing so they should have a reasonable expectation that those businesses are aware of the law and assume due diligence when it comes to ensuring compliance with it, in so far as is reasonably practical (the underpinning principle of the H&S@WA 1974, that empowers and enables CDM 2015).

 

Self builders are not employers, and are not clients (as defined in CDM 2015) and they are not employees of a building related business.  They are usually ordinary members of the public, not engaged in building a home as a part of a business or related undertaking, but as a personal endeavour, outwith the realms of business.  As such, business-focussed and related legislation does not apply to them, and CDM 2015 does state this, although, as I wrote much earlier in this thread, the wording is nowhere near as clear as I believe it could be.

 

The normal law that makes each and every one of us responsible for our own actions, and inactions, applies as much to self builders as it does to car drivers, cyclists or pedestrians.  As private citizens we all have a limited duty of care to our fellows, whether they be going about their own lawful business, or whether they are engaged in unlawful activity.  It is this duty of care that means that a self builder has to take reasonable measures to ensure that their land, and everything on it, is as safe as they can reasonably make it, bearing in mind that "reasonable" will be the standard "man on the Clapham omnibus" test in court, and as such there will be a much lower level of expectation than there would be, for example, from someone employed as a house builder.

[ProDave]

The only thing I would question in the above statement is "Self builders are not employers"

 

Why then did the builders I contracted to build and erect my frame, insist on seeing my "employers liability insurance"

[B52s]

55 minutes ago, JSHarris said:

 

The key is the use of the word "appoint".  A domestic client (i.e. a self builder, whether doing the work themselves or contracting with others) cannot appoint anyone, they do not have the authority to do so.

 

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).

Edited April 21, 2017 by B52s

[Jeremy Harris]

The RIBA document is not law.  In law, to appoint someone you must have the authority to do so.  A domestic client has no legal authority to do this.

 

I could contract with someone to undertake a service on my behalf, but that places a different set of responsibilities (in law) on both parties.   This is really contract law 101, but a contract requires an offer, the acceptance of that offer and the exchange of a consideration, in order to be valid in law (and I'm only really familiar with contract law in England and Wales, Scotland and Northern Ireland may be different).  The offer made by a contractor will be specific, and include the supply of goods or services to a specification.  The acceptance of that offer will be on the basis of that specification.  The exchange of a consideration is the provision of the goods or services to the customer and the payment to the contractor by the customer. 

 

If a self-builder contracts with a business to provide a service, say the design of a house, then the offer is for the provision of the agreed design service, including all legal obligations.  The self-builder has no authority to appoint a business to undertake a legal obligation, but can only accept an offer made as a part of a contract.

[Jeremy Harris]

25 minutes ago, ProDave said:

The only thing I would question in the above statement is "Self builders are not employers"

 

Why then did the builders I contracted to build and erect my frame, insist on seeing my "employers liability insurance"

 

 

I'm not familiar with Scots Law, but here you cannot be an employer if you contract for goods or services using a standard form of contract.  If you were to hire an individual, as an employee, then you become a business engaged in construction, and not a self builder.  This then means you lose all the privileges granted to self builders (VAT reclaim, duties, etc)

[ProDave]

1 minute ago, JSHarris said:

 

 

I'm not familiar with Scots Law, but here you cannot be an employer if you contract for goods or services using a standard form of contract.  If you were to hire an individual, as an employee, then you become a business engaged in construction, and not a self builder.  This then means you lose all the privileges granted to self builders (VAT reclaim, duties, etc)

No I was definitely contracting a firm of builders for one (yes rather large) part of the build, not employing one individual.

 

Probably just a bit of aris covering on their part.

[B52s]

6 minutes ago, JSHarris said:

The RIBA document is not law.  In law, to appoint someone you must have the authority to do so.  A domestic client has no legal authority to do this.

 

 

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

[Jeremy Harris]

28 minutes ago, B52s said:

 

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

 

Not in terms of being able to appoint an individual to a legally-binding role it doesn't!

 

There's some really fundamental misunderstanding here about the differing relationships between businesses working together to deliver a project, and a private individual contracting with one or more businesses to supply goods or services.  Different laws apply, for a start, as the private individual is a consumer, in law, and has the enhanced level of protection that applies when contracting for goods or services.

 

If we take the framework within which CDM was designed to apply, then the client would be a business (and I have experience of being a client in a modest construction project) and as such would have a contractual agreement with one or more businesses that were delivering the project.  Within that framework the client can indeed appoint people to assume particular roles, within the overarching framework of the contract between the client and the suppliers.

 

With a self-builder, there is no overarching contractual framework, and furthermore, a self builder cannot be a client, and so has no authority to appoint anyone.  All that a self builder can be is a domestic client, who places contracts with businesses, and those businesses have a duty to deliver goods or services in accordance with all relevant legislation.  This may well mean that some have to assume the role of principal designer, principle contractor, etc, but it is not the domestic client who is making these appointments, it is the businesses themselves doing so in order to comply with legislation.  As has already been mentioned, there may well be many principal contractors during a self build, as each contracted company plays it's part in delivering the contracted goods or services to the domestic client.

Edited April 21, 2017 by JSHarris
typo, wrote "business" when I meant "businesses"

[jack]

1 hour ago, ProDave said:

Why then did the builders I contracted to build and erect my frame, insist on seeing my "employers liability insurance"

 

That sounds barking to me.  

[B52s]

23 minutes ago, JSHarris said:

 

Not in terms of being able to appoint an individual to a legally-binding role it doesn't!

 

 

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.

Edited April 21, 2017 by B52s

[Jeremy Harris]

5 minutes ago, B52s said:

 

Forgive my ignorance here.

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

 

No.  A homeowner can contract with an architect, under normal contract law.  i.e., the architect makes an offer to the homeowner to provide specified services, the homeowner accepts that offer, and the architect delivers those services in return for the agreed remuneration.

 

The homeowner has no authority to appoint the architect as, say, principal designer under CDM 2015, as the homeowner is not a client, in terms of that legislation, but a domestic client.  The architect can assume the role of principal designer if he/she feels the need to in order to comply with CDM 2015.  The legal obligation with regard to the assumption of this role does not rest with the homeowner (the domestic client) but with the architect, who may feel required to assume that role in order to comply with the relevant legislation.

Edited April 21, 2017 by JSHarris
typo

[B52s]

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.