I’m trying to pin down how the new CDM Regs overlap with CAR 2012 and specifically the duty to manage Asbestos Reg 4. The New CDM Regs have been in place for all new projects since April 2015.
Due to the subtle or not so subtle shift in responsibilities of the new CDM 2015, I feel that there is now a direct line back to the Principle Designer (PD) and the Client if neither competently design in or manage Asbestos through a construction project.
So taking a pessimistic view, a Principle Contractor (PC) could claim an extension of time due to the fact that asbestos removal has not been designed in, through to someone who is exposed to Asbestos and makes a claim against the project team due to poor Asbestos management (duty holders under Reg 4 CAR 2012 are the Client, PD and PC but in reality if the PD doesn’t competently design it in at design or pre contract stage, they are the ones who will be exposed along with the client for not making sure they were capable from the outset).
One could argue that this has always been the case but now that the roles and responsibilities have been clarified under CDM 2015 by making the Client, PD and PC Duty Holders, it is the case.
There are other drivers, notably PI insurance and who needs to hold it, re Asbestos advice and separately, the fact that the HSE may well be using the same risk assessing regime they use when assessing the competence of Licenced Asbestos Removal Contractors when looking at project teams and clients.
To be clear, there is now an element of overlapping regulations which needs to be addressed.
Notwithstanding the Clients responsibilities as the Duty Holder under regulation 4 of CAR 2012 or the PC responsibilities to manage any Asbestos through the construction period, Under CDM 2015, it will fall on the PD to ensure that proper Asbestos management, under Reg 4 CAR 2012, is carried out through a construction project as they have responsibility for designing it safely and are a Duty Holder.
If proper Asbestos management is not carried out, including Asbestos removal, this could lead to immediate or retrospective liabilities under both CAR 2012 and CDM 2015 for the PD, PC and the Client.
CDM 2015 - Regulation 11 Duties of a principal designer in relation to health and safety at the pre-construction phase.
(6) The principal designer must:
(a) assist the client in the provision of the pre-construction information required by regulation 4(4); and
(b) so far as it is within the principal designer’s control, provide pre-construction information, promptly and in a convenient form, to every designer and contractor appointed, or being considered for appointment, to the project.
(7) The principal designer must liaise with the principal contractor for the duration of the principal designer’s appointment and share with the principal contractor information relevant to the planning, management and monitoring of the construction phase and the coordination of health and safety matters during the construction phase.
CAR 2012 - Regulation 4 Duty to manage asbestos in non-domestic premises
This regulation covers the duty to manage asbestos in non-domestic premises. It requires duty holders to identify the location and condition of asbestos in non-domestic premises and to manage the risk to prevent harm to anyone who works on the building or to building occupants. It also explains what is required of people who have a duty to co-operate with the main duty holder to enable them to comply with the regulation. Non-domestic premises includes the common parts of domestic premises.
The extracts above are from CDM 2015 and CAR 2012, they illustrate the point, the PD has a responsibility to see that Asbestos management is suitable and sufficient throughout the pre construction/design phase, the construction phase and the post construction phase including info/Asbestos management plan for the H&S plan/building.
This includes –
- Surveying and identification;
- Planning of Asbestos removal through a project to ensure it can be done safely and also without additional delays;
- Updating the Asbestos management plan including removals or ongoing management of ACMs left in place, for the H&S file;
- Communicating the Asbestos management/removal plans.
As Clients, PDs and PCs may not have the specific Asbestos skills this throws up the need for suitably competent consultants/contractors, like Maylarch, to manage it for them or give expert advice as part of the design team.
Another area where we can give expert advice is Demolition.
We have expertise and experience across Asbestos management, Asbestos removal, Demolition and Site remediation and can offer an end to end service.
If you would like to write a guest article for a future edition of our newsletter, please contact Emilie Sclater on 01242 248296.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.