Principal Designer role

[B52s]

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.

Edited April 20, 2017 by B52s
correction to reflect JSHarris comment.

[Jeremy Harris]

As (I hope) a final tidy up, the issue of the responsibilities of a domestic client have been raised in this thread, and this is what the legislation has to say, in full:

 

"Application to domestic clients
7.—(1) Where the client is a domestic client the duties in regulations 4(1) to (7) and 6 must be carried out by—
(a) the contractor for a project where there is only one contractor;
(b) the principal contractor for a project where there is more than one contractor; or
(c) the principal designer where there is a written agreement that the principal designer will fulfil those duties.

(2) If a domestic client fails to make the appointments required by regulation 5—
(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.
(3) Regulation 5(3) and (4) does not apply to a domestic client."

 

And here are the specific regulations referred to in the above section, first regulations 4(1) to (7) and regulation 6:

 

"Client duties in relation to managing projects
4.—(1) A client must make suitable arrangements for managing a project, including the allocation of sufficient time and other resources.
(2) Arrangements are suitable if they ensure that—
(a) the construction work can be carried out, so far as is reasonably practicable, without risks to the health or safety of any person affected by the project; and
(b) the facilities required by Schedule 2 are provided in respect of any person carrying out construction work.
(3) A client must ensure that these arrangements are maintained and reviewed throughout the project.
(4) A client must provide pre-construction information as soon as is practicable to every designer and contractor appointed, or being considered for appointment, to the project.
(5) A client must ensure that—
(a) before the construction phase begins, a construction phase plan is drawn up by the contractor if there is only one contractor, or by the principal contractor; and
(b) the principal designer prepares a health and safety file for the project, which—
(i) complies with the requirements of regulation 12(5);
(ii) is revised from time to time as appropriate to incorporate any relevant new information; and

(iii) is kept available for inspection by any person who may need it to comply with any
relevant legal requirements.
(6) A client must take reasonable steps to ensure that—
(a) the principal designer complies with any other principal designer duties in regulations 11
and 12; and
(b) the principal contractor complies with any other principal contractor duties in regulations 12 to 14.
(7) If a client disposes of the client’s interest in the structure, the client complies with the duty in paragraph (5)(b)(iii) by providing the health and safety file to the person who acquires the client’s interest in the structure and ensuring that that person is aware of the nature and purpose of the file. "

 

"Notification
6.—(1) A project is notifiable if the construction work on a construction site is scheduled to—
(a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or
(b) exceed 500 person days.
(2) Where a project is notifiable, the client must give notice in writing to the Executive as soon as is practicable before the construction phase begins.
(3) The notice must—
(a) contain the particulars specified in Schedule 1;
(b) be clearly displayed in the construction site office in a comprehensible form where it can be read by any worker engaged in the construction work; and
(c) if necessary, be periodically updated.
(4) Where a project includes construction work of a description for which the Office of Rail Regulation is the enforcing authority by virtue of regulation 3 of the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006(a), the client must give notice to the Office of Rail Regulation instead of the Executive.
(5) Where a project includes construction work on premises which are or are on—
(a) a GB nuclear site (within the meaning given in section 68 of the Energy Act 2013(b));
(b) an authorised defence site (within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998(c)); or
(c) a new nuclear build site (within the meaning given in regulation 2A of those Regulations),
the client must give notice to the Office for Nuclear Regulation instead of the Executive."

 

So, for all those regulations above, under "4 Client duties in relation to managing projects" and "6 Notification" the responsibility does not lie with the domestic client (i.e. a self-builder) but lies instead with:

 

(a) the contractor for a project where there is only one contractor;
(b) the principal contractor for a project where there is more than one contractor; or
(c) the principal designer where there is a written agreement that the principal designer will fulfil those duties.

 

And, if:

(2) If a domestic client fails to make the appointments required by regulation 5—
(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.

 

Regulation 5(3) and (4), that does not apply to a domestic client is:

 

"Appointment of the principal designer and the principal contractor
5.

...................
(3) If the client fails to appoint a principal designer, the client must fulfil the duties of the principal designer in regulation 11 and 12.
(4) If the client fails to appoint a principal contractor, the client must fulfil the duties of the principal contractor in regulations 12 to 14."

 

So it is very clear from this that a domestic client cannot be either the principal designer or the principal contractor.

 

In summary, a domestic client has NO responsibilities under CDM 2015, nor can a domestic client assume any!

 

 

 

 

 

 

 

[Jeremy Harris]

8 minutes ago, B52s said:

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 to appoint a principal designer.  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.

 

No it is not.  The law is clear, and a domestic client CANNOT assume responsibilities under CDM 2015!!!

 

The key here is that a self builder is NOT a business, and is not an "undertaking" that could have similar responsibilities to a business.  This defines a self builder as a domestic client, and although the regulations are not that well worded, there is a clear set of references and cross references that define what a domestic client can and cannot be responsible for.

Edited April 20, 2017 by JSHarris

[B52s]

25 minutes ago, JSHarris said:

 

No there is not.  The law is clear, and a domestic client CANNOT assume responsibilities under CDM 2015!!!

 

 

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.

Edited April 20, 2017 by B52s
added text

[Jeremy Harris]

You also wrote this:

1 hour ago, JSHarris said:

 However, if you are a self builder and not carrying out all construction activities yourself, there is indeed an obligation to appoint a principal designer.

 

This is not the case.  If you are a self-builder then, by definition, you are a domestic client, as you are not in business.  The law is clear, if you are not in business then you cannot be the client and therefore you are not required to appoint a principal designer, in fact I think you would be in danger of taking on an inappropriate degree of responsibility if you were to do such a thing, in terms of personal liability.

 

For clarity, Regulation 6(2)(a) makes things clear if a domestic client does the sensible thing and refuses to make appointments, because of the potential personal liability they might face if they did:

 

"(2) If a domestic client fails to make the appointments required by regulation 5—
(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."

 

Also, bear in mind that a domestic client cannot be the designer in control of the pre-construction phase, as he/she is not a business or other undertaking, as already defined earlier in this thread.

 

 

 

 

Edited April 20, 2017 by JSHarris

[B52s]

38 minutes ago, JSHarris said:

You also wrote this:

 

This is not the case.  If you are a self-builder then, by definition, you are a domestic client, as you are not in business.  The law is clear, if you are not in business then you cannot be the client and therefore you are not required to appoint a principal designer...

 

 

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. 

Edited April 20, 2017 by B52s

[Onoff]

This thread is vying for the longest with my bathroom! 

 

FFS someone lay a block or something and post a photo!

 

[Jeremy Harris]

My advice, as someone who has regularly appeared in court giving evidence in cases involving liability, is to never voluntarily accept responsibility for anything, unless you are 100% sure that you have no alternative.  An example from personal experience:

 

An acquaintance offered to help a pilot friend carry out a simple, authorised, factory safety modification to the pilot's own aircraft.  There was an accident, both the pilot and the passenger were killed.  Because the chap that had helped had freely offered assistance with the modification, and because there was a possibility that the incorrect embodiment of the modification could have been a contributory factor in the accident, the chap that helped, out of goodwill, was charged with double manslaughter, lost all his savings and equity in his house in paying for his defence, had a nervous breakdown and was eventually found unfit to plead.  There was no evidence that the work by this chap had caused the accident.  It was more likely that the pilot was the one that made an error, or series of errors, but he was dead.

 

The only sensible thing to do is to refuse to accept any responsibility, or act in any way that could be construed as accepting a role, in this case under CDM 2015.  Leave the ball very, very, firmly in the court of those you employ.  Remember you are a domestic client as a self-builder, and strongly resist any attempt to convince you otherwise.  Contractors may well be unwilling to accept their responsibilities, and may not be familiar with the fact that domestic clients cannot, and must not, perform any action, even the delegation of roles, under CDM 2015, without opening themselves up to an argument that they have accepted a role that has a greater duty of care than would be expected from a domestic client.

 

[Steptoe]

Its very clear,

Business does not mean you have to be a business, you are simply carrying out business,

Is this a question of so many forums, keep asking the same question,/ saying the same thing, until you get the answer you wanted, and everyone agrees with you.?

[Steptoe]

2 minutes ago, JSHarris said:

My advice, as someone who has regularly appeared in court giving evidence in cases involving liability, is to never voluntarily accept responsibility for anything, unless you are 100% sure that you have no alternative.  An example from personal experience:

 

An acquaintance offered to help a pilot friend carry out a simple, authorised, factory safety modification to the pilot's own aircraft.  There was an accident, both the pilot and the passenger were killed.  Because the chap that had helped had freely offered assistance with the modification, and because there was a possibility that the incorrect embodiment of the modification could have been a contributory factor in the accident, the chap that helped, out of goodwill, was charged with double manslaughter, lost all his savings and equity in his house in paying for his defence, had a nervous breakdown and was eventually found unfit to plead.  There was no evidence that the work by this chap had caused the accident.  It was more likely that the pilot was the one that made an error, or series of errors, but he was dead.

 

The only sensible thing to do is to refuse to accept any responsibility, or act in any way that could be construed as accepting a role, in this case under CDM 2015.  Leave the ball very, very, firmly in the court of those you employ.  Remember you are a domestic client as a self-builder, and strongly resist any attempt to convince you otherwise.  Contractors may well be unwilling to accept their responsibilities, and may not be familiar with the fact that domestic clients cannot, and must not, perform any action, even the delegation of roles, under CDM 2015, without opening themselves up to an argument that they have accepted a role that has a greater duty of care than would be expected from a domestic client.

 

That's all very well,

But you cannot refuse to accept your legal obligations,

If you are building a house, and refuse to appoint a main contractor, who will then contract all the other works out, then you have no choice but to become the main contractor yourself,

Do you understand the principle of being a main contractor,? I wonder,? 

The person who organises the works, and gets the various trades there as required,.

 

[PeterW]

14 hours ago, Steptoe said:

That's all very well,

But you cannot refuse to accept your legal obligations,

If you are building a house, and refuse to appoint a main contractor, who will then contract all the other works out, then you have no choice but to become the main contractor yourself,

Do you understand the principle of being a main contractor,? I wonder,? 

The person who organises the works, and gets the various trades there as required,.

 

 

Not true ..!

 

A project manager can get the trades - you do not need a main contractor ..!!

 

And going back over this again - in U.K. Statue Law, under the HSAW Act and the CDM 2015 regulations, you cannot be a contractor - main or otherwise - unless you are a business as defined in the Companies Act

 

If you disagree with that, find me the sections in the 3 pieces of legislation above that say otherwise as I'm damned if I can and I read and review legislation on a daily basis ..!

[PeterW]

12 minutes ago, Steptoe said:

Its very clear,

Business does not mean you have to be a business, you are simply carrying out business,

Is this a question of so many forums, keep asking the same question,/ saying the same thing, until you get the answer you wanted, and everyone agrees with you.?

 

That is incorrect - please read the Companies Act and the definitions from CDM2015 as that is what defines the term business. It's a legal definition in U.K. Law. 

[Steptoe]

1 hour ago, PeterW said:

 

That is incorrect - please read the Companies Act and the definitions from CDM2015 as that is what defines the term business. It's a legal definition in U.K. Law. 

How does a sole trader operate,? He doesn't come under the companies act,.

And, a previous quote from another poster, @JSHarris iirc, stated as such, that business was carrying out business and not necessarily being in business,

I think you are confusing the two terminologies.

If you buy a car, you have carried out business, 

Everyone seems intent on treating business as an entity, not an action.

[Steptoe]

1 hour ago, PeterW said:

 

Not true ..!

 

A project manager can get the trades - you do not need a main contractor ..!!

 

And going back over this again - in U.K. Statue Law, under the HSAW Act and the CDM 2015 regulations, you cannot be a contractor - main or otherwise - unless you are a business as defined in the Companies Act

 

If you disagree with that, find me the sections in the 3 pieces of legislation above that say otherwise as I damned if I can and I read and review legislation on a daily basis ..!

And your project manager would become what,?

 

[PeterW]

7 minutes ago, Steptoe said:

How does a sole trader operate,? He doesn't come under the companies act,.

And, a previous quote from another poster, @JSHarris iirc, stated as such, that business was carrying out business and not necessarily being in business,

I think you are confusing the two terminologies.

If you buy a car, you have carried out business, 

Everyone seems intent on treating business as an entity, not an action.

 

A business is not an action in this legislation  - buying a car is a transaction or contract for consideration under the Sale of Goods and Services Act. 

 

A sole trader is a business under the definition as the legislation states it as such : 

 

business” means a trade, business or other undertaking (whether for profit or not); 

 

so in this definition a business is a company or partnership (Companies Act definition) , a trade is a sole trader and an undertaking is as defined by the Companies Act again. 

 

These are statutory definitions not my interpretations and those are directly from the legislation. 

[Steptoe]

1 minute ago, PeterW said:

 

A business is not an action in this legislation  - buying a car is a transaction or contract for consideration under the Sale of Goods and Services Act. 

 

A sole trader is a business under the definition as the legislation states it as such : 

 

business” means a trade, business or other undertaking (whether for profit or not); 

 

so in this definition a business is a company or partnership (Companies Act definition) , a trade is a sole trader and an undertaking is as defined by the Companies Act again. 

 

These are statutory definitions not my interpretations and those are directly from the legislation. 

So

Business is trade, business or other undertaking

So tell me, how can building a house not be an undertaking?

It is after all under the auspices of the vat man, who is only interested in businesses, that's how he makes his money.

Or are you trying to say anyone can get their vat back,? 

[PeterW]

Just now, Steptoe said:

So

Business is trade, business or other undertaking

So tell me, how can building a house not be an undertaking?

It is after all under the auspices of the vat man, who is only interested in businesses, that's how he makes his money.

Or are you trying to say anyone can get their vat back,? 

 

Because an undertaking is a legal definition in the Companies Act..!

 

It is not that you are "undertaking building a house" it is the commercial construct of an organisation that is not a business and includes charitable organisations and other unincorporated associations. 

 

And if  you want to get into the finer points of the Finance Act and VAT then yes, self builders get their VAT back as otherwise they would be disadvantaged by developers who can do the same as residential property sales are exempt from VAT. 

[Steptoe]

Whatever way you want to cut it, it doesn't matter,

Ignoring CDM is fine, like a lot of things, it won't matter until it goes wrong.

Do you think your insurance company will be bothered then,?

 

They will leap at the opportunity to walk away.

 

People will continually ask the same thing until they get the answer they want, like a child asking for ice cream until the parent gets fed up and says yes.

 

[PeterW]

This post isn't about ignoring CDM, it's about who's responsibility it is in law with respect to the Principal Designer role and it's a valid discussion. 

 

And an insurance company will not only walk away if you haven't done something, they will also walk away if you have - take responsibility in law for something you are not supposed to or liable for and you are on your own ..! 

[Steptoe]

And, unless you appoint a main contractor, who in turn, appoints the rest of the subbies/trades , then you , by default, become the main contractor,

If you want to appoint all the separate trades yourself, how do you differ yourself from someone who appoints an actual main contractor,? 

You cannot appoint multiple main contractors, no matter how much you may think you can, the clue is in the word 'main' .

 

[jamiehamy]

Here's a thought - if it's not already subject of talks at the Homebuilding and Renovation Shows this year, how can we get it on? DIY Selfbuilding, Project Managing Self Builder, Main Contractor Self Builder?

 

I've never attended any but that's one I'd be interested in...who knows anybody who has anything to do with them?!

[PeterW]

11 hours ago, Steptoe said:

And, unless you appoint a main contractor, who in turn, appoints the rest of the subbies/trades , then you , by default, become the main contractor,

If you want to appoint all the separate trades yourself, how do you differ yourself from someone who appoints an actual main contractor,? 

You cannot appoint multiple main contractors, no matter how much you may think you can, the clue is in the word 'main' .

 

 

Ok - main contractor isn't a legal term, it's principal contractor for CDM 2015. 

 

You can have multiple principal contractors, one at  each stage of a build potentially. 

 

As a domestic client you do not have to by law appoint a principal contractor, but if you don't then there is legal precedence in the legislation that states which becomes principal contractor. 

 

 

[Triassic]

8 hours ago, Steptoe said:

And, unless you appoint a main contractor, who in turn, appoints the rest of the subbies/trades , then you , by default, become the main contractor,

If you want to appoint all the separate trades yourself, how do you differ yourself from someone who appoints an actual main contractor,? 

You cannot appoint multiple main contractors, no matter how much you may think you can, the clue is in the word 'main' .

 

In not the main contractor I'm a domestic customer. 

 

When I go on Trust a Trader I don't get a huge pop up warning that I'm a main contractor.

 

 

Edited April 21, 2017 by Triassic
Typo

[PeterW]

33 minutes ago, jamiehamy said:

Here's a thought - if it's not already subject of talks at the Homebuilding and Renovation Shows this year, how can we get it on? DIY Selfbuilding, Project Managing Self Builder, Main Contractor Self Builder?

 

I've never attended any but that's one I'd be interested in...who knows anybody who has anything to do with them?!

 

Just had a quick look @jamiehamy at the Ask an Expert on Grand Designs Live and whilst there are PMs and Architects not a single bio or company website for the PMs especially mention CDM anywhere ..! I think the H&R shows do have a request email address for topics but will have a look later  

[B52s]

10 hours ago, Steptoe said:

And, unless you appoint a main contractor, who in turn, appoints the rest of the subbies/trades , then you , by default, become the main contractor,

If you want to appoint all the separate trades yourself, how do you differ yourself from someone who appoints an actual main contractor,? 

You cannot appoint multiple main contractors, no matter how much you may think you can, the clue is in the word 'main' .

 

 

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.)

Edited April 21, 2017 by B52s